An ecological calamity
Many have serious reservations concerning the proposed Opemican Provincial Park.
This is an enormous land grab on the part of the province of Quebec.
The proposed boundaries for the park follow the natural shore line of Lake Temiscamingue for over 25 kilometers between Pointe Opemican and the Kipawa River except for the area around Lost Creek.
At Lost Creek the park boundary becomes narrowed where Hydro Quebec has proposed its Tabaret project. Tabaret would divert the majority of the water that flows down the Kipawa River into a man made channel then into a hydro dam that would be constructed within a few hundred meters of the park boundary.
This would greatly diminish the integrity of the Kipawa River and create a backwater on Kipawa Lake between Stenhouse Bay and Laniel which is the natural drainage for the lake.
The rapids of the Kipawa River and the waterfall at Grande Chute are two of the main assets and natural wonders of the proposed park yet they do not merit protection from diversion by Hydro Quebec.
Ministry of Parks and Environment officials promoting Opemican Park have admitted that Hydro Quebec and the Tabaret Project were too big and powerful a consideration.
Now is the time to protest too much.
Wednesday, December 23, 2009
Friday, December 18, 2009
Hugo Chavez, Copenhagen, and Us
Dec. 17th, 2009 Video: Hugo Chavez speech, inspiring and courageous in his delivery. A man of the hour but will enough people support a social solution that will help all, or will the propaganda and spin bar the way to any positive way out of this mess. Worth watching...
Check the three clips (Total 27 min) of the Hugo Chavez speech in Copenhagen, Dec. 17th, 2009 at: (Spanish and English) simultaneously
http://ato.smartcapital.ca/actcity?go=2276233
or click below:
Hugo Chavez 1/3 voice of the people
http://www.youtube.com/user/TVZL#p/u/3/ZhMeL1dz40c
Hugo Chavez 2/3 voice of the people
http://www.youtube.com/user/TVZL#p/u/2/rQxilU1Rcuk
Hugo Chavez 3/3 voice of the people
http://www.youtube.com/user/TVZL#p/u/1/vlbfFVa8WKA
Please share it with others...thanks.
Check the three clips (Total 27 min) of the Hugo Chavez speech in Copenhagen, Dec. 17th, 2009 at: (Spanish and English) simultaneously
http://ato.smartcapital.ca/actcity?go=2276233
or click below:
Hugo Chavez 1/3 voice of the people
http://www.youtube.com/user/TVZL#p/u/3/ZhMeL1dz40c
Hugo Chavez 2/3 voice of the people
http://www.youtube.com/user/TVZL#p/u/2/rQxilU1Rcuk
Hugo Chavez 3/3 voice of the people
http://www.youtube.com/user/TVZL#p/u/1/vlbfFVa8WKA
Please share it with others...thanks.
Thursday, December 17, 2009
Friends of the Kipawa River
* Outdoor Sports: Whitewater Paddling, Cycling, Climbing, Trekking;
* Natural History: Travel/study Tours in Ethnology of the Algonquins,
* History of Logging and Mining, Early Fur Trade
* Nature Reserve tours and Species Studies: Spring and Fall Flower Photography, Birding, Trekking and Sightseeing.
In Temiskaming we are fortunate to enjoy one of the most magnificent rivers in the world.
It thunders down from Lake Kipawa, rolls along highway 101, and crashes down to Lake Temiskaming. From the Nahani River in the far north to the Grand River in the south, rivers help define our country and our natural heritage.
Unfortunately, we haven’t been smart about the Kipawa River – and it shows. It has not been protected and is threatened by two diversion proposals!
It’s time to set a goal for river preservation in Temiskaming. The Kipawa is a Wild & Scenic River that should be protected from dams, diversions, and other disruptions to its natural state.
Quebec has many miles of rivers and streams. We should preserve the 19 miles of our most pristine river, through Wild & Scenic designation. We know it can be done.
Protecting the Kipawa river provides people with opportunities for recreation and generates economic benefits as well. We need this protected river for fishing, camping, picnicking, whitewater boating, or simply getting out to
the nature from time to time. River recreation pumps millions of dollars into Quebec’s economy every year and provides steady income for rural communities. It can do so in Temiskaming!.
At the same time, protecting the Kipawa river guarantees a home for countless creatures from river otters and osprey to bass and pickerel. We have a responsibility to make sure that future generations have the opportunity to see these beautiful animals in their natural homes. Protect just 19 km of Quebec's magnificent rivers? Surely we can do that.
There was a time when people in Quebec took riverbanks and creeksides for granted. Now the rapid pace of development forces us to plan carefully to preserve our open spaces. This is especially true in some of the fastest growing regions of Quebec. Creating a Kipawa river pathway with easy access for everyone must be a key element of our forward-thinking planning.
This isn't just a local idea. All around the world, communities recognize the collective benefits of establishing river pathways for all their residents to enjoy picnicking, bike riding, swimming, jogging, and strolling along a river. Ensuring that everyone has access to riverfront areas improves the quality of life in a community. Riverside parks offer opportunities for camping, fishing, and family reunions.
If only a few developers control a community's waterfront, then most people are shut out. With unlimited development, the Kipawa Rier riverbanks will more likely be lined with concrete and “No Trespassing” signs than with pathways and picnic tables.
River pathways offer much more than just recreation. They play a critical role in flood management and habitat restoration. The natural weather cycle of Quebec includes a wet spring. When rainfall is above normal, the Kipawa rises accordingly. Keeping the land along the riverbanks open and undeveloped allows the water to rise without threatening homes or lives.
River pathways also play a critical role in habitat restoration, and they bring nature to us. Birds and animals that naturally make their homes along the Kipawa are allowed a place to live and their populations flourish.
River pathways simply make life better for all of us. Preserving our pristine river and creating a river pathway for everyone is part of Les Amis' common sense plan to preserve, restore, and sustain the Kipawa river. Learn more about this proposal and our entire 20-year plan at www.kipawariver.ca
The Kipawa river belongs to everyone, and everyone should enjoy the environmental, economic, and recreational benefits. Friends of the Kipawa River advocate a long-term plan to preserve, restore, and sustain this amazing river. We
propose an achievable, five-point plan to benefit all that can be fully realized within twenty years.
Preserve the 19 miles of the Kipawa River– Quebec’s most pristine river through Wild & Scenic designation. It will be the first River in Canada to achieve such a designation. The Kipawa river provides unparalleled opportunities for outdoor recreation, important habitat for fish and wildlife, and a critical source of clean water. Protecting this most beautiful river as Wild & Scenic will preserve our natural heritage for future generations.
Establish 25 miles of river pathways with easy public access. River pathways offer recreational opportunities for biking, walking, school outings,and picnics. This will bring nature into easy reach of Quebec's urban areas, providing habitat for dozens of native species. Everyone should have access to our beautiful Kipawa river.
Ease the impact of existing dams & remove those that are obsolete. Return the Kipawa river to its natural flows allowing native species and natural ecosystems to recover and create opportunities for increased recreational tourism like fishing and rafting.
Protect and restore water quality for people & wildlife. Every living thing needs clean water - and for many that water comes from the Kipawa river.
Protecting and restoring the water quality in the Kipawa is a critical component of meeting the fresh water needs of Temiskaming.
Learn more about this plan and other ways Friends of the Kipawa River can help to save the Kipawa River at
www.kipawariver.ca
JOIN
Friends of the Kipawa River
NOW
The Kipawa river cannot protect itself. Our magnificent river faces increasing pressure from developers, polluters, and dam builders.
Friends of the Kipawa River, Temiskaming's main river conservation
organization, advocates a common sense approach to preserving the Kipawa river, restoring parts of the river that have been damaged, and promoting sustainable water management to ease the pressures on it.
Our policy experts earn the respect of provincial officials. Our volunteers educate hundreds of people each year. Most importantly, our members take action. They write letters. They attend meetings. They tell agencies and corporations that we care about the Kipawa river. The more members we have and the more active you are, the more effectively we can implement our river-saving plan.
We know – and you know – that the Kipawa river is a treasure to be preserved, not just a resource to be exploited.
Join Friends of the Kipawa River now and help us put our plan to work.
Yes, I want to join Friends of the Kipawa River and help save the Kipawa River.
____________________________________________________________
NAME
____________________________________________________________
STREET ADDRESS
____________________________________________________________
CITY Province Postal Code
____________________________________________________________
PHONE NUMBER
____________________________________________________________
E-MAIL ADDRESS (we need your email address to reach you
with urgent alerts)
Enclosed is my tax
deductible contribution of:
❑ $35 ❑ $50 ❑ $100 ❑ $250
❑ Other ____________
❑ I have enclosed a check made payable to:
Friends of the River
❑ I prefer to charge my contribution to my:
❑ Visa ❑ MasterCard ❑ American Express
____________________________________________________________
CARD #
____________________________________________________________
NAME - AS IT APPEARS ON THE CARD
____________________________________________________________
SIGNATURE
www.kipawariver.ca
* Natural History: Travel/study Tours in Ethnology of the Algonquins,
* History of Logging and Mining, Early Fur Trade
* Nature Reserve tours and Species Studies: Spring and Fall Flower Photography, Birding, Trekking and Sightseeing.
In Temiskaming we are fortunate to enjoy one of the most magnificent rivers in the world.
It thunders down from Lake Kipawa, rolls along highway 101, and crashes down to Lake Temiskaming. From the Nahani River in the far north to the Grand River in the south, rivers help define our country and our natural heritage.
Unfortunately, we haven’t been smart about the Kipawa River – and it shows. It has not been protected and is threatened by two diversion proposals!
It’s time to set a goal for river preservation in Temiskaming. The Kipawa is a Wild & Scenic River that should be protected from dams, diversions, and other disruptions to its natural state.
Quebec has many miles of rivers and streams. We should preserve the 19 miles of our most pristine river, through Wild & Scenic designation. We know it can be done.
Protecting the Kipawa river provides people with opportunities for recreation and generates economic benefits as well. We need this protected river for fishing, camping, picnicking, whitewater boating, or simply getting out to
the nature from time to time. River recreation pumps millions of dollars into Quebec’s economy every year and provides steady income for rural communities. It can do so in Temiskaming!.
At the same time, protecting the Kipawa river guarantees a home for countless creatures from river otters and osprey to bass and pickerel. We have a responsibility to make sure that future generations have the opportunity to see these beautiful animals in their natural homes. Protect just 19 km of Quebec's magnificent rivers? Surely we can do that.
There was a time when people in Quebec took riverbanks and creeksides for granted. Now the rapid pace of development forces us to plan carefully to preserve our open spaces. This is especially true in some of the fastest growing regions of Quebec. Creating a Kipawa river pathway with easy access for everyone must be a key element of our forward-thinking planning.
This isn't just a local idea. All around the world, communities recognize the collective benefits of establishing river pathways for all their residents to enjoy picnicking, bike riding, swimming, jogging, and strolling along a river. Ensuring that everyone has access to riverfront areas improves the quality of life in a community. Riverside parks offer opportunities for camping, fishing, and family reunions.
If only a few developers control a community's waterfront, then most people are shut out. With unlimited development, the Kipawa Rier riverbanks will more likely be lined with concrete and “No Trespassing” signs than with pathways and picnic tables.
River pathways offer much more than just recreation. They play a critical role in flood management and habitat restoration. The natural weather cycle of Quebec includes a wet spring. When rainfall is above normal, the Kipawa rises accordingly. Keeping the land along the riverbanks open and undeveloped allows the water to rise without threatening homes or lives.
River pathways also play a critical role in habitat restoration, and they bring nature to us. Birds and animals that naturally make their homes along the Kipawa are allowed a place to live and their populations flourish.
River pathways simply make life better for all of us. Preserving our pristine river and creating a river pathway for everyone is part of Les Amis' common sense plan to preserve, restore, and sustain the Kipawa river. Learn more about this proposal and our entire 20-year plan at www.kipawariver.ca
The Kipawa river belongs to everyone, and everyone should enjoy the environmental, economic, and recreational benefits. Friends of the Kipawa River advocate a long-term plan to preserve, restore, and sustain this amazing river. We
propose an achievable, five-point plan to benefit all that can be fully realized within twenty years.
Preserve the 19 miles of the Kipawa River– Quebec’s most pristine river through Wild & Scenic designation. It will be the first River in Canada to achieve such a designation. The Kipawa river provides unparalleled opportunities for outdoor recreation, important habitat for fish and wildlife, and a critical source of clean water. Protecting this most beautiful river as Wild & Scenic will preserve our natural heritage for future generations.
Establish 25 miles of river pathways with easy public access. River pathways offer recreational opportunities for biking, walking, school outings,and picnics. This will bring nature into easy reach of Quebec's urban areas, providing habitat for dozens of native species. Everyone should have access to our beautiful Kipawa river.
Ease the impact of existing dams & remove those that are obsolete. Return the Kipawa river to its natural flows allowing native species and natural ecosystems to recover and create opportunities for increased recreational tourism like fishing and rafting.
Protect and restore water quality for people & wildlife. Every living thing needs clean water - and for many that water comes from the Kipawa river.
Protecting and restoring the water quality in the Kipawa is a critical component of meeting the fresh water needs of Temiskaming.
Learn more about this plan and other ways Friends of the Kipawa River can help to save the Kipawa River at
www.kipawariver.ca
JOIN
Friends of the Kipawa River
NOW
The Kipawa river cannot protect itself. Our magnificent river faces increasing pressure from developers, polluters, and dam builders.
Friends of the Kipawa River, Temiskaming's main river conservation
organization, advocates a common sense approach to preserving the Kipawa river, restoring parts of the river that have been damaged, and promoting sustainable water management to ease the pressures on it.
Our policy experts earn the respect of provincial officials. Our volunteers educate hundreds of people each year. Most importantly, our members take action. They write letters. They attend meetings. They tell agencies and corporations that we care about the Kipawa river. The more members we have and the more active you are, the more effectively we can implement our river-saving plan.
We know – and you know – that the Kipawa river is a treasure to be preserved, not just a resource to be exploited.
Join Friends of the Kipawa River now and help us put our plan to work.
Yes, I want to join Friends of the Kipawa River and help save the Kipawa River.
____________________________________________________________
NAME
____________________________________________________________
STREET ADDRESS
____________________________________________________________
CITY Province Postal Code
____________________________________________________________
PHONE NUMBER
____________________________________________________________
E-MAIL ADDRESS (we need your email address to reach you
with urgent alerts)
Enclosed is my tax
deductible contribution of:
❑ $35 ❑ $50 ❑ $100 ❑ $250
❑ Other ____________
❑ I have enclosed a check made payable to:
Friends of the River
❑ I prefer to charge my contribution to my:
❑ Visa ❑ MasterCard ❑ American Express
____________________________________________________________
CARD #
____________________________________________________________
NAME - AS IT APPEARS ON THE CARD
____________________________________________________________
SIGNATURE
www.kipawariver.ca
Saturday, December 12, 2009
Les Amis Raises Funds from the Paddling Community for its Judicial Review Court Costs!
In the photo above, Peter Karwacki is presented a cheque from Esprit Rafting as received by treasurer Francois Diebolt. Esprit was one of the largest contributors. The successful fundraiser resolved the problem of court costs that saw Les Amis facing bankruptcy.
"It was a Christmas Present of enormous proportions" said Karwacki, thanking all who generously donated.
We have raised the required funds to pay off our court costs. The attendance at the special meeting was dismal but the the funds raised spoke louder than actions. People care about what Les Amis is doing but preferred to show monetary support.
Our two single largest donors:
Rob Monti (also our lawyer at the lower court) $1000.
Jim Coffey: Esprit Rafting Worldwide $1000
Other individual Donors from the Toronto Paddling Film Night and Les Amis Fundraiser:
Robert Koloshuk - n/a
Yurii Kuzmin - n/a
Jim Maclachlan - $20
Sean McShane - $20
Brandon Kraiker - $10
Jenna Matthews - $5
Dave Larouque - $10
Mark D'eon - $10
Jessica D'eon - $10
Dominik Rozamski - $10
Jeff Colgrove - $10
Nathaniel Phlpal-Lark - $40
Roger Wear - $20
Sebastian Borowiec - n/a
Liz McIntyre - n/a
Steve Taylor - n/a
Sara Rykov - $15
Alex Rykov - $20
Mano Krueger - n/a
Craig Mitchell - n/a
Elizabeth Moore - n/a
Stacey Gray - n/a
Simmi Sai - n/a
David Grattan - n/a
Geoff Corbett - $60
Tyler Fox - n/a
Brad Peacock - n/a
Brodee Harte - n/a
Kristy - n/a
Josh - n/a
Lori Donald - $5
Rob Holden - n/a
Greg Okimi - n/a
Robert Sleet - n/a
Jon Beanels - n/a
Laura Dunean - n/a
Greg Barltop - n/a
Brad Statham - n/a
B Kippy - n/a
Jay Scull - n/a
Ken Kell - n/a
Oswan Hall - n/a
Wayne Donison - n/a
Stef McArdle - n/a
Lindsay Stanford - n/a
Rob May - n/a
Nikki Lord - n/a
Sheryl Phillips - n/a
Jim Phillips - n/a
Elsh Feder - n/a
Emily Cooke - n/a
The Cranston Family - n/a
Jonathan Lieberman - n/a
Rayzie Shulman - n/a
Cathy Maggs - n/a
Kevin Maggs - n/a
Alex Maggs - n/a
Richard Maggs - n/a
Joyce Riem - n/a
Rosa Trueman - n/a
Geoff Boyd - $50
Christine Lolley - $10
Tom Kniezic - $10
Dan McBride - $10
Other Donors
Sudbury Padders:
Milke Palkovitz $50.00
Rob Palkovitz $100.
Ken Jarecki $50.
Paul Cook $50.
Gergely Lanci $50
Andrew Noob $50.
Others
$50,00 Stacey Grey
$50,00 Robert S Miller & Dawn Mills
$100,00 Marc Gélinas
$500,00 Benoit Duclos
$100,00 Yves Forget
$50,00 Emma Stinson
$50,00 David Humphrys
$100,00 Jean Plamondon
$300,00 Martin Talbot
$50,00 Mr.Ben Aylsworth
$100,00 Interpolar Inc.
$100,00 Tommy Allen,
$50,00 Christian Gigault
$50,00 David Reichart
$500,00 Les Portageurs Kayak and Canoe Club
$50,00 Les voyageuer Kayak and Canoe Club
$100,00 James MacLachlan
$75 Ian Colbert
$500 Peter Karwacki and Cheryl Nakamura
$6,787 Total Received to date or firm Pledges received...
of this $2562 has been forward directly to the Receiver General for Canada towards our outstanding account of $5,000.
Friday, December 11, 2009
Who Speaks for the Kipawa river
In reference to a recent letter by Scott Sorensen published in the Témiscamingue Le Reflet newspaper, as president of Les Amis de la rivière Kipawa I wish to make the following comments.
For the people of Témiscamingue region it seems clear that the proposed Opemican Park is unwanted and most could care less about the Kipawa river. Hydro-Québec has made some grand promises to the MRC of Temiskaming and they have the power to construct their Kipawa River Diversion Project within the proposed Opemican Park in any case. To many this just seems crazy but it is the sad reality.
In the province of Québec, Hydro-Québec seems to be able to do anything it wants to do. The population doesn't see the consequences of diversion of the Kipawa river as negative but something that will bolster the local economy. It seem that the general population believes that any new industry is preferred over the preservation of a prestine natural resource such as the Kipawa River flowing in its natural stream bed.
However, as a river preservation organization, dedicated to the ecological and recreational values of the Kipawa River we do not agree that the annual payments to the MRC are the way to gain the endorsement of the local population. The MRC mayors have made their decision based mostly on the promised cash, a short term view and r less about the future, the environment and other long term possibilties.
Further, the provincial minister who wants (and will ultimately create) the park has no power to stop Hydro-Québec's Tabaret project To Les Amis this all seems a bit too surreal. It's incredible that the Kipawa River, where we have run our Kipawa River Rally for the last 24 years may soon become a dry gulch.
Some of the local municipalities want the Tabaret project to proceed, and others prefer the private proposed Gordon (Innergex project). It certainly seems that there are no mayors who chose neither hydro project. Lets be clear however, just because the majority is chosing an option, this does not mean that the best alternative for Temiskaming includes diversion of the Kipawa River or the construction of a powerstation in the midsts of a proposed provincial Park, Opemican.
Recently the Laniel water control Dam was refurbished and modified to prevent the public from using the sluice of the dam as a recreational resource. Les Amis petitioned the government all the way to the Supreme Court to maintain this right of navigability but ultimately lost. But who really loses in a case like this? Ultimately it is the people of Temiskaming who have lost.
Les Amis believes in the collective power of the people, firmly grasping the facts of the situation and with a clear head to the future. It is not the 'fault ' of the Kipawa River that is does not lie close to a major center like Toronto, Montreal or Ottawa. It is not close enough that people would be easily familiar with its virtues. It is a remote place and that is both its strength and its weakness.
Tabaret
The sky is vast, my blood runs cold, so who will speak for me?
with skin like rock my soul is old, and ancient as the sea
From whence I came the age knows not and source is lost in time
And where I go no end is clear except as ocean's brine
Memories lost pour ever more a wish - a breath exspired
Clock ticks rumbling with the stones within my depths inspired
Measured for a concrete suit and kilojoules of light
overlooked by countless those who'd rather see than fight
Sold for wages and of sin by disembodied drones
Nameless those triumphant boffs of steel and glass -atone!
Could ride my back, explore my ways consume what I have sown
But take not blood away from me from which their life has grown
Let me assure you , we will continue to lobby on behalf of the river since nobody else seems to want to do this. Our position is that no water should be diverted from the Kipawa River - period. We would consider run of the river projects on the river itself or the use of the Laniel dam as a generating point. True, there is loss of electrical potential at this point but the trade off is water flowing within the river itself, now and for perpetuity. We also encourage the further development of the Kipawa River Trail and its extension along Lake Temiskaming. We feel that the public will see this as the right decision in future, and an opportutnity lost should the MRC leaders opt for cold hard cash in exchange for the natural wonder that is the Kipawa River.
Wednesday, November 18, 2009
Concerns about river access in Elora Gorge
Dear Whitewater Paddlers,
On behalf of GKC there is a possibility of loss of access to the regular put-in at the Elora Gorge. This is a very serious issue connected to a condominium development on private land in the town of Elora, Ontario.
The most important thing right now is to get everyone possible to submit a letter to the township planning coordinator. This will obligate them to inform all concerned citizens and stakeholders of any public meetings and allow our input before anything is finalized.
Guelph Kayak Club
Megan Grant
Planning Coordinator
1 MacDonald Square
Elora, Ontario
N0B1S0
mgrant@centrewellington.ca
2009 11 18
RE: Little Folks Secondary Plan Amendment
Dear Ms. Grant,
I have reviewed the Little Folks Secondary Plan (the Plan) for the application to amend the Official Plan and would appreciate being informed about any public meetings related to the Little Folks Secondary Plan and Official Plan Amendment.
There are two parts of this proposed plan that are troubling to me as a whitewater enthusiast, as a former president of Whitewater Ontario, and as President of Les Amis de la rivière Kipawa. Please forward the following concerns to the municipality for their consideration.
Firstly the issue of River Access as the Plan proposes to cut off the only access to the river at “the cove”; a trail that has been used by visitors and residents for decades.
I understand that the stated Goals and Objectives, are to:
2.2.3. “Provide a natural extension of the Elora Village commercial district”
2.2.5. “Embrace the natural environmental edges of the river bank, while accommodating pedestrian and visual access”
But in keeping with the Municipal Official Plan-Township of Centre Wellington, section 4.2.2, that “…redevelopment should retain the historic features of the site and address public access to the Grand River…,” the township will protect and negotiate a provision for continued use of a trail to access “the cove” before approving this Plan.
Secondly the matter of preserving recreational use of the river because, as mentioned in section 3.0, “...Reactivation of the abandoned waterpower generation facility along the south side of the Grand River is being investigated.”
The “Tooth of Time” waterfall is a major tourist attraction to Elora and water is already drawn out of the head pond away from the waterfalls to supply the Elora Mill waterpower generation facility. I object to the proposal to develop a second waterpower generation facility, which will reduce water flow over the “Tooth of Time” even more. I would like to be certain that the impacts associated with reactivating this power generation facility, and there affect on water levels and therefore, recreational activities, has been appropriately considered and mitigated.
Thank you for your serious consideration of these important issues, as they will greatly impact the entire community, including all residents and visitors of Elora.
Sincerely,
Peter Karwacki
On behalf of GKC there is a possibility of loss of access to the regular put-in at the Elora Gorge. This is a very serious issue connected to a condominium development on private land in the town of Elora, Ontario.
The most important thing right now is to get everyone possible to submit a letter to the township planning coordinator. This will obligate them to inform all concerned citizens and stakeholders of any public meetings and allow our input before anything is finalized.
Guelph Kayak Club
Megan Grant
Planning Coordinator
1 MacDonald Square
Elora, Ontario
N0B1S0
mgrant@centrewellington.ca
2009 11 18
RE: Little Folks Secondary Plan Amendment
Dear Ms. Grant,
I have reviewed the Little Folks Secondary Plan (the Plan) for the application to amend the Official Plan and would appreciate being informed about any public meetings related to the Little Folks Secondary Plan and Official Plan Amendment.
There are two parts of this proposed plan that are troubling to me as a whitewater enthusiast, as a former president of Whitewater Ontario, and as President of Les Amis de la rivière Kipawa. Please forward the following concerns to the municipality for their consideration.
Firstly the issue of River Access as the Plan proposes to cut off the only access to the river at “the cove”; a trail that has been used by visitors and residents for decades.
I understand that the stated Goals and Objectives, are to:
2.2.3. “Provide a natural extension of the Elora Village commercial district”
2.2.5. “Embrace the natural environmental edges of the river bank, while accommodating pedestrian and visual access”
But in keeping with the Municipal Official Plan-Township of Centre Wellington, section 4.2.2, that “…redevelopment should retain the historic features of the site and address public access to the Grand River…,” the township will protect and negotiate a provision for continued use of a trail to access “the cove” before approving this Plan.
Secondly the matter of preserving recreational use of the river because, as mentioned in section 3.0, “...Reactivation of the abandoned waterpower generation facility along the south side of the Grand River is being investigated.”
The “Tooth of Time” waterfall is a major tourist attraction to Elora and water is already drawn out of the head pond away from the waterfalls to supply the Elora Mill waterpower generation facility. I object to the proposal to develop a second waterpower generation facility, which will reduce water flow over the “Tooth of Time” even more. I would like to be certain that the impacts associated with reactivating this power generation facility, and there affect on water levels and therefore, recreational activities, has been appropriately considered and mitigated.
Thank you for your serious consideration of these important issues, as they will greatly impact the entire community, including all residents and visitors of Elora.
Sincerely,
Peter Karwacki
Wednesday, November 11, 2009
Our Concern Regarding New NWPA Regulations
In general our concerns relate to the arbitrary and off hand treatment of socalled minor waters. We are very much offended by the means by which the Navigable Waters Protection Act has been amended: buried in the Omnibus budget bill as it was.
Recreational boaters naturally see minor waters, those with steeper gradients, greater sinousity, and with more frequent obstacles or variations in depth less that the limits are still considered "fun".
Parenthetically, minor waters also happen to be habitat for wildlife and often are the "sources"/headwaters of more navigable waterways.
We do not want these resources taken away, dammed, removed from public access, polluted, harmed or disfigured based on some arbitrary action by a Government of Canada transport official without public input. We know from experience this will not guarantee a public right but it does slow things down and put an element of uncertainty into the developers cost/benefit equations.
I am speaking from the standpoint of Les Amis de la Riviere Kipawa Judicial Review of the Laniel Dam refurbishment.
In that case, enthusiasts were legally navigating an illegal dam and illegal boom for over 40 years only to see that right of naviagation arbitrarily squashed by government authorities, includingTransport Canada authorities, that claimed that they acted illegally, or unsafely or insignificantly.
Worse, Les Amis, as a not for profit organization from Quebec, which dared to stand up for its rights is now asked to pay $5,000 in court costs.
How can any natural resource stand up to exploitation with the odds so heavily stacked against them? How can the public, that depends on due process, fairness and common sense act to protect their heritage?
Recreational boaters naturally see minor waters, those with steeper gradients, greater sinousity, and with more frequent obstacles or variations in depth less that the limits are still considered "fun".
Parenthetically, minor waters also happen to be habitat for wildlife and often are the "sources"/headwaters of more navigable waterways.
We do not want these resources taken away, dammed, removed from public access, polluted, harmed or disfigured based on some arbitrary action by a Government of Canada transport official without public input. We know from experience this will not guarantee a public right but it does slow things down and put an element of uncertainty into the developers cost/benefit equations.
I am speaking from the standpoint of Les Amis de la Riviere Kipawa Judicial Review of the Laniel Dam refurbishment.
In that case, enthusiasts were legally navigating an illegal dam and illegal boom for over 40 years only to see that right of naviagation arbitrarily squashed by government authorities, includingTransport Canada authorities, that claimed that they acted illegally, or unsafely or insignificantly.
Worse, Les Amis, as a not for profit organization from Quebec, which dared to stand up for its rights is now asked to pay $5,000 in court costs.
How can any natural resource stand up to exploitation with the odds so heavily stacked against them? How can the public, that depends on due process, fairness and common sense act to protect their heritage?
Tuesday, November 10, 2009
Access to Elora Gorge Threatened by Private Project
http://www.guelphkayakclub.ca/index.php?option=com_jfusion&Itemid=59
Members of the local paddling club are moblizing to take action to preserve the access trail.
Members of the local paddling club are moblizing to take action to preserve the access trail.
Can we specify a new Class: a paddling environmentalist's class of rivers?
Rivers are clearly endangered:... but Kenneth Hahn said:
The idea of designating certain waterways is an idea that I believe merits serious consideration. A couple of points worth considering:
1. It would be cumbersome to explicitly designate specific waterways in the regulations because new waterways could only be included if the regulations were re-approved, which is an onerous project.
2. It would be better to identify classes of designated waterways. For example, if Environment Canada had a designation of 'extremely ecologically sensitive' one could make a statement in the NWPA proposed regulations that "all waterways designated as extremely ecologically sensitive by Environment Canada" cannot be considered a minor navigable water.
3. This is an extremely preliminary discussion because I don't know if this type of categorization is possible, or even if the NWPA is the appropriate place for it. Perhaps Environment Canada should designate waterways and the possible consequences.
I think it is worth pursuing - even though nothing may come of it.
I am certain that interested parties and stakeholders have other such intriguing ideas that could be very important in shaping the regulations.
Regarding your questions concerning the degree of malleability, in my discussions with management, all the criteria for the existing minor works and waters are on the table, as is the list of minor works and waters. It can be extended (for example, in BC, proponents want mooring buoys considered as a minor work) or reduced.
... he's drafting the regulations: this is our chance to save your river, section of river and so forth
I'm trying to get a meeting with Mr. Hahn organized with the Canadian Environmental Network's Water Caucus of which I am a member.
I cannot emphasize this anymore strongly: if you think that pipeline crossings, dredging are threats to sections of navigable waters, forget minor waters.
The act is passed, we now need to impact the regulations not sleep walk through this.
Minor waters, you know, 200 meters long? Average width less than 1.2 meters, average depth less than so and so, complete with obstructions....too much sinousity,
BADDDDDDDDDDDDDDDDDD Stuff where paddlers are concerned .
For example, if Environment Canada had a designation of 'extremely ecologically sensitive' (significant socio economic impact?) one could make a statement in the NWPA proposed regulations that "all waterways designated as extremely ecologically sensitive by Environment Canada" cannot be considered a minor navigable water.
Interested parties and stakeholders must have other such intriguing ideas that could be very important in shaping the regulations.
My suggestions: get your club or group to name recreationally valuable stretches of water as exclusions in the regulations.
This is the fellow you must contact:
Ken Hahn
Project Manager - Regulatory Development / Gestionnaire de projet - Développement Réglementaire
Navigable Waters Protection Program / Programme de protection de eaux navigables
Marine Safety, Tower C, Place de Ville / Sécurité maritime, Tour C, Place de Ville
330 Sparks Street, 10th Floor, AMSEG / 330, rue Sparks, 10ième étage, AMSEG
Ottawa, Ontario, K1A 0N8
Telephone/Téléphone: 613-998-6442
Fax/Télécopieur: 613-998-0637
E-Mail/Courriel: Kenneth.Hahn@tc.gc.ca
_________________
The idea of designating certain waterways is an idea that I believe merits serious consideration. A couple of points worth considering:
1. It would be cumbersome to explicitly designate specific waterways in the regulations because new waterways could only be included if the regulations were re-approved, which is an onerous project.
2. It would be better to identify classes of designated waterways. For example, if Environment Canada had a designation of 'extremely ecologically sensitive' one could make a statement in the NWPA proposed regulations that "all waterways designated as extremely ecologically sensitive by Environment Canada" cannot be considered a minor navigable water.
3. This is an extremely preliminary discussion because I don't know if this type of categorization is possible, or even if the NWPA is the appropriate place for it. Perhaps Environment Canada should designate waterways and the possible consequences.
I think it is worth pursuing - even though nothing may come of it.
I am certain that interested parties and stakeholders have other such intriguing ideas that could be very important in shaping the regulations.
Regarding your questions concerning the degree of malleability, in my discussions with management, all the criteria for the existing minor works and waters are on the table, as is the list of minor works and waters. It can be extended (for example, in BC, proponents want mooring buoys considered as a minor work) or reduced.
... he's drafting the regulations: this is our chance to save your river, section of river and so forth
I'm trying to get a meeting with Mr. Hahn organized with the Canadian Environmental Network's Water Caucus of which I am a member.
I cannot emphasize this anymore strongly: if you think that pipeline crossings, dredging are threats to sections of navigable waters, forget minor waters.
The act is passed, we now need to impact the regulations not sleep walk through this.
Minor waters, you know, 200 meters long? Average width less than 1.2 meters, average depth less than so and so, complete with obstructions....too much sinousity,
BADDDDDDDDDDDDDDDDDD Stuff where paddlers are concerned .
For example, if Environment Canada had a designation of 'extremely ecologically sensitive' (significant socio economic impact?) one could make a statement in the NWPA proposed regulations that "all waterways designated as extremely ecologically sensitive by Environment Canada" cannot be considered a minor navigable water.
Interested parties and stakeholders must have other such intriguing ideas that could be very important in shaping the regulations.
My suggestions: get your club or group to name recreationally valuable stretches of water as exclusions in the regulations.
This is the fellow you must contact:
Ken Hahn
Project Manager - Regulatory Development / Gestionnaire de projet - Développement Réglementaire
Navigable Waters Protection Program / Programme de protection de eaux navigables
Marine Safety, Tower C, Place de Ville / Sécurité maritime, Tour C, Place de Ville
330 Sparks Street, 10th Floor, AMSEG / 330, rue Sparks, 10ième étage, AMSEG
Ottawa, Ontario, K1A 0N8
Telephone/Téléphone: 613-998-6442
Fax/Télécopieur: 613-998-0637
E-Mail/Courriel: Kenneth.Hahn@tc.gc.ca
_________________
Friday, November 6, 2009
Contribute to the new NWPA regulations on Minor Waters
contact:
Ken Hahn
Project Manager - Regulatory Development / Gestionnaire de projet - Développement Réglementaire
Navigable Waters Protection Program / Programme de protection de eaux navigables
Marine Safety, Tower C, Place de Ville / Sécurité maritime, Tour C, Place de Ville
330 Sparks Street, 10th Floor, AMSEG / 330, rue Sparks, 10ième étage, AMSEG
Ottawa, Ontario, K1A 0N8
Telephone/Téléphone: 613-998-6442
Fax/Télécopieur: 613-998-0637
E-Mail/Courriel: Kenneth.Hahn@tc.gc.ca
Ken Hahn
Project Manager - Regulatory Development / Gestionnaire de projet - Développement Réglementaire
Navigable Waters Protection Program / Programme de protection de eaux navigables
Marine Safety, Tower C, Place de Ville / Sécurité maritime, Tour C, Place de Ville
330 Sparks Street, 10th Floor, AMSEG / 330, rue Sparks, 10ième étage, AMSEG
Ottawa, Ontario, K1A 0N8
Telephone/Téléphone: 613-998-6442
Fax/Télécopieur: 613-998-0637
E-Mail/Courriel: Kenneth.Hahn@tc.gc.ca
River Preservationist rants about loosey goosey paddling community
Give this a good read: taken from
http://www.boatwerks.net/boaterboard/viewtopic.php?t=9423
Rlob Monti goes postal on weak kneed paddling community and the dire state of river preservation in this country. He said,
Pete, give me a break! Just when I think I can’t get any more fed up you manage to push another button. I’m probably wasting my time here on this forum, but since I rolled up my sleeves, invested a couple years trying to work with you and move this case forward to hearing and working with Jim, Doug and others and taking it on the chin in the end and since I’m a lawyer and an officer of the court then what I have to say is “an informed opinion” coming directly from experience and having been in the trenches in this specific case.
I will also say up front that I blame Jim Coffey and Esprit for teaching me to whitewater kayak and “infecting” me at that time with a love of whitewater. I realize now I was surreptitiously brainwashed during my 5-day learn to ww kayak and I’ve never been the same since.
To my mind the 5K question shouldn’t even be a question. I would never advise a client to avoid a legal responsibility. Own your choices. Be responsible. Be accountable for your actions. Pay your own way. Take the high road. Sometimes it hurts. It’s a simple philosophy but its easier to keep your priorities straight. You don’t spend time dithering around second-guessing yourself and you don’t need a meeting to figure it out. Just because you don’t like the other side’s tactics or you feel cheated, doesn’t mean you should be looking for a wily way out. That’s not cool or wily – its lame. You want cred, you want boaters to be seen as legit, you want others to pick up where you left off, then don’t leave loose ends. Les Amis took three kicks at the judicial can and the bill at the end of the day from other side is 5K. Les Amis fought a battle that was a first for a whitewater organization in this country – a first. Now you are seriously thinking of tarnishing that valiant struggle and ending it on a totally sour note by punctuating that struggle with bankruptcy instead of learning and growing from the experience. That’s idiotic! What Les Amis did was the equivalent of doing a first descent in the legal forum. So it got beat down this time. So what! Who gives up after their first trashing? Only those who never should have taken up the sport in the first place. Learning from defeat and coming back stronger and wiser is where its at. Get a back bone!
As a lawyer knowing what other losing parties have to cough up in cases where they feel they should have won, I say that’s cheap. Les Amis knows full well and was fully advised as to the prospects of success on appeal. The judge at the Federal Court level dismissed without costs but Les Amis decided as is its right and knowing the consequent risks to try not once, but twice in two other judicial levels to get that decision overturned.
Litigation involves the risk that you will lose and have to pay a portion of the winner’s costs. The government won and is now seeking a fraction of what a private party litigant would be seeking in a similar case. So now you need a meeting to figure this out Pete? Give me a Fxxx’g break man! Maybe six people will show up for that meeting if you bribe them with food and depending what’s on t.v. and whether they still live at home with mom and what she’s making them supper that night.
Pete, cancel the dam meeting! Do this instead. Jim has already said he would contribute, right. I’m calling on Jim to donate 1K. Now dig into your own dam pockets and every other contact you have who cares about this issue and come with another 3K. So that’s 4K. Since I called out Jim for 1K, I’m putting my money where my mouth is after already having donating countless hours to that cause and taking it on the chin in court at the end of the day. I will personally match Esprit’s 1K contribution and cut a cheque for $1K to Les Amis. So there’s your court costs. The money I would have used to get a new Nomad I will fork over for this instead. There’s the 5K. Just do it, be done with it, and get your focus forward on the next big thing (Tabaret) and start wrapping your frigging heads around the real challenge – the end game – saving rivers. If you can’t dig up another 3K then that says something directly about you. You never should have gone down this road to begin with.
Les Amis may disappear but what about you? How much damage will you cause to your own reputation being the face of who brought Les Amis down. Let me assure you that if you do this and you ever think in the future that any lawyer, decision-maker, consultant or anyone with any kind of credibility will let their name be associated with yours – where the name Pete Karwacki is involved, forget about it. That will be the kiss of death to the cause.
If you sink this organization over 5K, then my last word on Les Amis will be that I regret ever having taken on Les Amis as a client in the first place, I will regret that I ever went on record, not for the Kipawa, but for you. Your antics and attitude are part of what gave the judge an easy out and damaged the credibility of Les Amis and why he singled you out in the decision. Yet here you go again. Did you act after careful consideration by the Board of Les Amis following a carefully considered in camera discussions about potential ramifications and obtain a resolution from the Board first before making this kind of public query? Did you stop to think how other people, people like me in who put in a ton of sweat equity and my reputation and my firm’s on record with the Court, would be implicated by your actions?
Or did you simply act on your own and hold yourself out as speaking for Les Amis because you happen to be president and so now Les Amis is your alter ego? Unbelievably, you are at it again. It blows my freaking my mind. Let’s be clear about one thing, Pete. I will never ever go near or associate my name with any kind of river issue or organization in which you are involved or able to hold yourself out as a spokesperson for the organization – EVER!
You do this and the negative implications extend far beyond Les Amis but will add fuel to the stereotype of whitewater boaters as freeloading dirtbags. Why listen to whining dirtbags who can’t carry their own weight?
You remember what this is all about – the big picture? Navigability and its preservation (which implicitly preserves rivers in their wild state and provides an underpinning of thriving ecosystems and a sustainable world) should trump. At a minimum the concept of protecting navigability as that concept has been handed down to us over the centuries and is a concept that is the foundation of what has protected waterways and their ongoing navigability to the current day should be seen as a right that presumptively takes precedence over other competing rights. The right of navigability should only be encroached upon where the proponent of such encroachment can demonstrate, using objective and consensus based criteria backed by science (not petty politics or cronyism or labels like economic stimulus) that such encroachment or impairment is justified and is always done in a way wherever possible so as to exact minimum impairment.
The Kipawa case was the first real real opportunity for a whitewater organization to flesh out that discussion, in the context of a rapid that had been safely navigated for decades, had become an international draw to paddlers and was being eliminated at the stroke of a pen. Why? Is the choice the government made, the best choice? What went into the decision-making? What factors were considered? Who was consulted? What is being gained? What is being lost? What are the implications of not just the final decision, but the process by which the decision was arrived at? I saw this as an important case. Too few of you agreed.
Nothing the government did surprised me in this case. I pretty much expected it to do what it did. No big surprise there. The biggest and saddest surprise and part of the problem going forward is this so-called boating community is lame. There’s a whole lot ob talk (all kinds of trash on this board) but very few walk the talk. In the U.S. there is American Whitewater fighting the feds, getting dams busted up, getting releases, defending access.
Jim wanted a precedent. I did too, but I always said that momentum is something that has to be built. A precedent may take time coming. What has to happen first is people ( a whole lot of people) just need to recognize and agree that here was something worth saving. Could people mobilize around a river festival that has gone for decades is known far and wide and has publicized a gorgeous river with excellent first hand evidence of navigation. This case was about sending a wake up call and seeing who out there was even listening and how many people cared.
Save for exceptional individual bright lights: Jim Coffey, Doug Skeggs, friends at the Sierra Club, other organizations like WO that did make a contribution, Bobbie and others who organized the fundraiser concert in Toronto, this so-called boating community proved to be just a theory. The “community” I went to bat for that I expected to put a big shout out and make this a political issue proved to be a pretty marginal subgroup in the end.
If that community is out there, it never really woke up. What needed to materialize didn’t. We had the first level hearing in the Supreme Court of Canada building. There was an opportunity to send a message. It didn’t happen. Well, maybe it missed that one and would show in the Federal Court of Appeal. No again.
Boaters couldn’t agree that this case mattered. Even less would dig into their pockets to contribute. Too many saw it as marginal and not worth the effort. Most failed to see it as the “thin edge of the wedge” that will embolden other interests and make damming other rivers with the stroke of a pen and ignoring the concerns of whitewater boaters that much easier. If boaters didn’t get it, then what possible chance is there to build a persuasive case that will convince the average citizen, a politician or a legislator that what you care about matters or should matter to the broader citizenry?
So the NWPA comes under attack and Jim Coffey and Doug Skeggs organized the demonstration on Parliament Hill. Here was a real opportunity for boaters at the grass roots to come together, to make some noise and to celebrate the rivers they love in a show of mass support for river preservation. It was an extremely low effort investment required from the community to show you care about paddling rivers and want to keep paddling those rivers. All you had to do was show up. The Rupert is gone. Part of the Ashlu is gone. The Pet is being assessed for a hydro diversion. Anybody see a pattern? You want to see how a river gets saved, read up on the dam that was never built on the Franklin river in Tasmania and how support was rallied to the point where numbers reached 20,000 – in Tasmania! Something like 1200 people were arrested in protest and blockades. Ask yourself the question. How did they get so many people to care and why don’t enough care here?
So how many showed for the cause– maybe 50. Fifty! I can see how some might superficially dismiss the Kipawa case because you said it was just about a dam. But surely you would care enough about other rivers in Canada to show up when it mattered right? Nope. That sent a very clear message about how much this issue resonates or doesn’t. More importantly it shows how many boaters will get their asses out of boats and move them to be a political force. Not showing up does send a clear message. The community did a good job of showing industry and politicos that they can keep on ignoring you because when push comes to shove, you’d rather stay home or just go boating. This is the point I think Maggs has made several times already and I agree with him on that.
Stopping the loss of rivers and protecting rapids will only happen with cohesion, dedication, hard work and persistence. Most importantly, if there is a ww boating community, it has to wake up. It has to mobilize en masse. It can’t sit back thinking one, two or 10 people will get the job done while the rest benefit without having to lift a finger. There has to be a critical mass. Until there is ww boaters will just be brushed off with form letters and ignored. Based on what I’ve seen and what I continue to see on this board (with stunts like Pete’s) I’m pretty sure it will not happen anytime soon. Most here are just looking to be entertained.
Whitewater boaters in this country will continue to lose and lose and lose until people get their s@#(t together, roll up their sleeves and do some real work (but why do real work trying to make a difference when you can just flame people on this board with a few keystrokes instead). At least boaters in the U.S., through American Whitewater got it right. At least I live close to the Adirondacks, so I’ll always have place to paddle protected rivers. But it saddens me as a Canadian, a paddler, a father to see the places that make this country not just great, but spectacular and a draw around the world, being diminished and pilfered away for short term gain of very few at the expense of Canadians generally through a combination of shortsightedness and the indifference of the silent and apathetic majority who are just letting it happen.
http://www.boatwerks.net/boaterboard/viewtopic.php?t=9423
Rlob Monti goes postal on weak kneed paddling community and the dire state of river preservation in this country. He said,
Pete, give me a break! Just when I think I can’t get any more fed up you manage to push another button. I’m probably wasting my time here on this forum, but since I rolled up my sleeves, invested a couple years trying to work with you and move this case forward to hearing and working with Jim, Doug and others and taking it on the chin in the end and since I’m a lawyer and an officer of the court then what I have to say is “an informed opinion” coming directly from experience and having been in the trenches in this specific case.
I will also say up front that I blame Jim Coffey and Esprit for teaching me to whitewater kayak and “infecting” me at that time with a love of whitewater. I realize now I was surreptitiously brainwashed during my 5-day learn to ww kayak and I’ve never been the same since.
To my mind the 5K question shouldn’t even be a question. I would never advise a client to avoid a legal responsibility. Own your choices. Be responsible. Be accountable for your actions. Pay your own way. Take the high road. Sometimes it hurts. It’s a simple philosophy but its easier to keep your priorities straight. You don’t spend time dithering around second-guessing yourself and you don’t need a meeting to figure it out. Just because you don’t like the other side’s tactics or you feel cheated, doesn’t mean you should be looking for a wily way out. That’s not cool or wily – its lame. You want cred, you want boaters to be seen as legit, you want others to pick up where you left off, then don’t leave loose ends. Les Amis took three kicks at the judicial can and the bill at the end of the day from other side is 5K. Les Amis fought a battle that was a first for a whitewater organization in this country – a first. Now you are seriously thinking of tarnishing that valiant struggle and ending it on a totally sour note by punctuating that struggle with bankruptcy instead of learning and growing from the experience. That’s idiotic! What Les Amis did was the equivalent of doing a first descent in the legal forum. So it got beat down this time. So what! Who gives up after their first trashing? Only those who never should have taken up the sport in the first place. Learning from defeat and coming back stronger and wiser is where its at. Get a back bone!
As a lawyer knowing what other losing parties have to cough up in cases where they feel they should have won, I say that’s cheap. Les Amis knows full well and was fully advised as to the prospects of success on appeal. The judge at the Federal Court level dismissed without costs but Les Amis decided as is its right and knowing the consequent risks to try not once, but twice in two other judicial levels to get that decision overturned.
Litigation involves the risk that you will lose and have to pay a portion of the winner’s costs. The government won and is now seeking a fraction of what a private party litigant would be seeking in a similar case. So now you need a meeting to figure this out Pete? Give me a Fxxx’g break man! Maybe six people will show up for that meeting if you bribe them with food and depending what’s on t.v. and whether they still live at home with mom and what she’s making them supper that night.
Pete, cancel the dam meeting! Do this instead. Jim has already said he would contribute, right. I’m calling on Jim to donate 1K. Now dig into your own dam pockets and every other contact you have who cares about this issue and come with another 3K. So that’s 4K. Since I called out Jim for 1K, I’m putting my money where my mouth is after already having donating countless hours to that cause and taking it on the chin in court at the end of the day. I will personally match Esprit’s 1K contribution and cut a cheque for $1K to Les Amis. So there’s your court costs. The money I would have used to get a new Nomad I will fork over for this instead. There’s the 5K. Just do it, be done with it, and get your focus forward on the next big thing (Tabaret) and start wrapping your frigging heads around the real challenge – the end game – saving rivers. If you can’t dig up another 3K then that says something directly about you. You never should have gone down this road to begin with.
Les Amis may disappear but what about you? How much damage will you cause to your own reputation being the face of who brought Les Amis down. Let me assure you that if you do this and you ever think in the future that any lawyer, decision-maker, consultant or anyone with any kind of credibility will let their name be associated with yours – where the name Pete Karwacki is involved, forget about it. That will be the kiss of death to the cause.
If you sink this organization over 5K, then my last word on Les Amis will be that I regret ever having taken on Les Amis as a client in the first place, I will regret that I ever went on record, not for the Kipawa, but for you. Your antics and attitude are part of what gave the judge an easy out and damaged the credibility of Les Amis and why he singled you out in the decision. Yet here you go again. Did you act after careful consideration by the Board of Les Amis following a carefully considered in camera discussions about potential ramifications and obtain a resolution from the Board first before making this kind of public query? Did you stop to think how other people, people like me in who put in a ton of sweat equity and my reputation and my firm’s on record with the Court, would be implicated by your actions?
Or did you simply act on your own and hold yourself out as speaking for Les Amis because you happen to be president and so now Les Amis is your alter ego? Unbelievably, you are at it again. It blows my freaking my mind. Let’s be clear about one thing, Pete. I will never ever go near or associate my name with any kind of river issue or organization in which you are involved or able to hold yourself out as a spokesperson for the organization – EVER!
You do this and the negative implications extend far beyond Les Amis but will add fuel to the stereotype of whitewater boaters as freeloading dirtbags. Why listen to whining dirtbags who can’t carry their own weight?
You remember what this is all about – the big picture? Navigability and its preservation (which implicitly preserves rivers in their wild state and provides an underpinning of thriving ecosystems and a sustainable world) should trump. At a minimum the concept of protecting navigability as that concept has been handed down to us over the centuries and is a concept that is the foundation of what has protected waterways and their ongoing navigability to the current day should be seen as a right that presumptively takes precedence over other competing rights. The right of navigability should only be encroached upon where the proponent of such encroachment can demonstrate, using objective and consensus based criteria backed by science (not petty politics or cronyism or labels like economic stimulus) that such encroachment or impairment is justified and is always done in a way wherever possible so as to exact minimum impairment.
The Kipawa case was the first real real opportunity for a whitewater organization to flesh out that discussion, in the context of a rapid that had been safely navigated for decades, had become an international draw to paddlers and was being eliminated at the stroke of a pen. Why? Is the choice the government made, the best choice? What went into the decision-making? What factors were considered? Who was consulted? What is being gained? What is being lost? What are the implications of not just the final decision, but the process by which the decision was arrived at? I saw this as an important case. Too few of you agreed.
Nothing the government did surprised me in this case. I pretty much expected it to do what it did. No big surprise there. The biggest and saddest surprise and part of the problem going forward is this so-called boating community is lame. There’s a whole lot ob talk (all kinds of trash on this board) but very few walk the talk. In the U.S. there is American Whitewater fighting the feds, getting dams busted up, getting releases, defending access.
Jim wanted a precedent. I did too, but I always said that momentum is something that has to be built. A precedent may take time coming. What has to happen first is people ( a whole lot of people) just need to recognize and agree that here was something worth saving. Could people mobilize around a river festival that has gone for decades is known far and wide and has publicized a gorgeous river with excellent first hand evidence of navigation. This case was about sending a wake up call and seeing who out there was even listening and how many people cared.
Save for exceptional individual bright lights: Jim Coffey, Doug Skeggs, friends at the Sierra Club, other organizations like WO that did make a contribution, Bobbie and others who organized the fundraiser concert in Toronto, this so-called boating community proved to be just a theory. The “community” I went to bat for that I expected to put a big shout out and make this a political issue proved to be a pretty marginal subgroup in the end.
If that community is out there, it never really woke up. What needed to materialize didn’t. We had the first level hearing in the Supreme Court of Canada building. There was an opportunity to send a message. It didn’t happen. Well, maybe it missed that one and would show in the Federal Court of Appeal. No again.
Boaters couldn’t agree that this case mattered. Even less would dig into their pockets to contribute. Too many saw it as marginal and not worth the effort. Most failed to see it as the “thin edge of the wedge” that will embolden other interests and make damming other rivers with the stroke of a pen and ignoring the concerns of whitewater boaters that much easier. If boaters didn’t get it, then what possible chance is there to build a persuasive case that will convince the average citizen, a politician or a legislator that what you care about matters or should matter to the broader citizenry?
So the NWPA comes under attack and Jim Coffey and Doug Skeggs organized the demonstration on Parliament Hill. Here was a real opportunity for boaters at the grass roots to come together, to make some noise and to celebrate the rivers they love in a show of mass support for river preservation. It was an extremely low effort investment required from the community to show you care about paddling rivers and want to keep paddling those rivers. All you had to do was show up. The Rupert is gone. Part of the Ashlu is gone. The Pet is being assessed for a hydro diversion. Anybody see a pattern? You want to see how a river gets saved, read up on the dam that was never built on the Franklin river in Tasmania and how support was rallied to the point where numbers reached 20,000 – in Tasmania! Something like 1200 people were arrested in protest and blockades. Ask yourself the question. How did they get so many people to care and why don’t enough care here?
So how many showed for the cause– maybe 50. Fifty! I can see how some might superficially dismiss the Kipawa case because you said it was just about a dam. But surely you would care enough about other rivers in Canada to show up when it mattered right? Nope. That sent a very clear message about how much this issue resonates or doesn’t. More importantly it shows how many boaters will get their asses out of boats and move them to be a political force. Not showing up does send a clear message. The community did a good job of showing industry and politicos that they can keep on ignoring you because when push comes to shove, you’d rather stay home or just go boating. This is the point I think Maggs has made several times already and I agree with him on that.
Stopping the loss of rivers and protecting rapids will only happen with cohesion, dedication, hard work and persistence. Most importantly, if there is a ww boating community, it has to wake up. It has to mobilize en masse. It can’t sit back thinking one, two or 10 people will get the job done while the rest benefit without having to lift a finger. There has to be a critical mass. Until there is ww boaters will just be brushed off with form letters and ignored. Based on what I’ve seen and what I continue to see on this board (with stunts like Pete’s) I’m pretty sure it will not happen anytime soon. Most here are just looking to be entertained.
Whitewater boaters in this country will continue to lose and lose and lose until people get their s@#(t together, roll up their sleeves and do some real work (but why do real work trying to make a difference when you can just flame people on this board with a few keystrokes instead). At least boaters in the U.S., through American Whitewater got it right. At least I live close to the Adirondacks, so I’ll always have place to paddle protected rivers. But it saddens me as a Canadian, a paddler, a father to see the places that make this country not just great, but spectacular and a draw around the world, being diminished and pilfered away for short term gain of very few at the expense of Canadians generally through a combination of shortsightedness and the indifference of the silent and apathetic majority who are just letting it happen.
Wednesday, November 4, 2009
Notice of Special General Meeting
Special General meeting of Les Amis De la Riviere Kipawa:
Date: December 12th
Time: 14:00 hours
Location: Ottawa, 80 Ontario Street.
Requirements: 10 members present. 30 days written notice.
Agenda Items:
The issue at hand is our obligation to both protect the Kipawa river and
deal with our outstanding court costs to the Government of Canada in
accordance with our constitution. ( attached).
The Proposed course of actions include:
1. To default and declare bankruptcy
2. To plead for terms based on our Kipawa Rally Income
3. To create a public raucus and withhold any payment.
4. any other option brought forward to the special meeting.
Date: December 12th
Time: 14:00 hours
Location: Ottawa, 80 Ontario Street.
Requirements: 10 members present. 30 days written notice.
Agenda Items:
The issue at hand is our obligation to both protect the Kipawa river and
deal with our outstanding court costs to the Government of Canada in
accordance with our constitution. ( attached).
The Proposed course of actions include:
1. To default and declare bankruptcy
2. To plead for terms based on our Kipawa Rally Income
3. To create a public raucus and withhold any payment.
4. any other option brought forward to the special meeting.
Monday, November 2, 2009
Ministry of Transport wants feedback by Dec. 31st
http://www.yip.org/~erhard/temp/NWPA-2009-10-TCslideshow.pdf
FEEDBACK CONCERNING NAVIGABLE WATERS PROTECTION ACT
FEEDBACK CONCERNING NAVIGABLE WATERS PROTECTION ACT
Court Costs and the Public Interest
Les Amis is informed that it must pay the Federal Government (Attorney General) $5,000 for the government's costs because of our Appeal to the Federal Court and Leave for Appeal to the Supreme Court.
We have no money but they insist we pay, meaning bankruptcy for Les Amis, a non profit river preservation organization based in Quebec.
The court case fought to the limit of the law was fought to preserve the Kipawa River, something done in the public interest. Nobody in Les Amis benefited from this, it took countless volunteer hours to mount the challenge.
Does anybody see a problem with this?
Does anybody care?
WTF?
Pete
We have no money but they insist we pay, meaning bankruptcy for Les Amis, a non profit river preservation organization based in Quebec.
The court case fought to the limit of the law was fought to preserve the Kipawa River, something done in the public interest. Nobody in Les Amis benefited from this, it took countless volunteer hours to mount the challenge.
Does anybody see a problem with this?
Does anybody care?
WTF?
Pete
Friday, September 18, 2009
One man's view of riverpreservation
PRINCIPLES OF THE PRESERVATION AND USE OF SMALL
AND MEDIUM RIVERS
V. S. Lapshenkov UDC 551.482.2
In contrast to the hydrological interpretation of terms, "river" should be defined as a natural set of interrelated entities,
the unity of whose formation and development is dictated by river flow. It is an entity of a living and nonliving (inert) nature,
and rivers are therefore bioinert systems of the Earth.
Agricultural, ecological, and recreational usefulness of rivers is determined by their status: from maximum full productivity
with annual renewal of useable resources to complete unsuitableness and even handfulness. The status of rivers is determined
by a regime that depends on both natural factors, and also anthropogenic load.
The following are referred to as basic components of the river complex, which provide value (usefulness right up to
irreplacability of river systems):
river water (drinking and industrial needs, habitat for ichthyofauna, aquatic birds, and, irrigation and water supply,
dilution of waste water, the necessary conditions for water transport, and an effective body when used in hydraulic power
engineering);
river channel (discharge of excess water and waste water, regional drains, condition for year-round life support of river
biosynoses, recreation);
flood plains (regulation of flood conditions with a reduction in maximum flow rates and an increase in the duration of
the flood, active improvement of water quality, high productivity of flooded lands, recreation);
permeable soils that fill the erosion in-cutting of the river valley (a required component for drainage and the wetting of
bottomland soils);
biosynoses (river productivity, effect on channel processes, recreation);
quarries producing nonmetallic materials; and,
recreation zones (optimal combination of landscape elements, water surface, and vegetative cover).
The basic problem of river-system protection is the preservation of the above-enumerated useful entities. Retention of
the properties of the river and the ability to reproduce its own natural resources and improve its condition on an annual basis
serves as a criterion of preservation quality.
Increases in the productivity of river systems to the optimal can be achieved by taking recultivation and agricultural
measures within limits ensuring guaranteed annual restoration of natural resources (the volume and regime of the water flow,
fertility of flood-plain areas, water supply, optimal conditions for river processes, etc.).
As studies have indicated, river systems without active continuous preservation and technically literate use of their
natural resources cannot exist under rather high levels of development in the national economy: degradation of individual rivers
and their segments occurs right up to their death. The matter of the preservation and rational use of rivers should be entrusted
to a special technical service that can be created for each river system with a medium river at the head. Conversion from
spontaneous use of river resources to their literate engineering exploitation is required.
Measures that stimulate natural creative forces and useful processes are based on the principle of the preservation and
use of rivers. Their active origin is in the water flow.
To implement this principle, it is necessary to create the possibility of control over the river system by taking required
organizational, agrotechnical, forest-reclamation, hydrotechnical, sanitary-technical, and operational measures.
The means of controlling a natural-technical riparian water-distribution system should affect the following elements,
which ensure the preservation and productivity of the rivers:
Translated from Gidrotekhnicheskoe Stroitel'stvo, No. 12, pp. 8-9, December, 1992.
0018-822CJ/92/2612-0767512.50 9 Plenum Publishing Corporation 767
Principles of the preservation and use of small and medium rivers
Journal Power Technology and Engineering (formerly Hydrotechnical Construction)
Publisher Springer New York
ISSN 1570-145X (Print) 1570-1468 (Online)
Issue Volume 26, Number 12 / December, 1992
DOI 10.1007/BF01545814
Pages 767-768
Subject Collection Engineering
SpringerLink Date Monday, May 02, 2005
AND MEDIUM RIVERS
V. S. Lapshenkov UDC 551.482.2
In contrast to the hydrological interpretation of terms, "river" should be defined as a natural set of interrelated entities,
the unity of whose formation and development is dictated by river flow. It is an entity of a living and nonliving (inert) nature,
and rivers are therefore bioinert systems of the Earth.
Agricultural, ecological, and recreational usefulness of rivers is determined by their status: from maximum full productivity
with annual renewal of useable resources to complete unsuitableness and even handfulness. The status of rivers is determined
by a regime that depends on both natural factors, and also anthropogenic load.
The following are referred to as basic components of the river complex, which provide value (usefulness right up to
irreplacability of river systems):
river water (drinking and industrial needs, habitat for ichthyofauna, aquatic birds, and, irrigation and water supply,
dilution of waste water, the necessary conditions for water transport, and an effective body when used in hydraulic power
engineering);
river channel (discharge of excess water and waste water, regional drains, condition for year-round life support of river
biosynoses, recreation);
flood plains (regulation of flood conditions with a reduction in maximum flow rates and an increase in the duration of
the flood, active improvement of water quality, high productivity of flooded lands, recreation);
permeable soils that fill the erosion in-cutting of the river valley (a required component for drainage and the wetting of
bottomland soils);
biosynoses (river productivity, effect on channel processes, recreation);
quarries producing nonmetallic materials; and,
recreation zones (optimal combination of landscape elements, water surface, and vegetative cover).
The basic problem of river-system protection is the preservation of the above-enumerated useful entities. Retention of
the properties of the river and the ability to reproduce its own natural resources and improve its condition on an annual basis
serves as a criterion of preservation quality.
Increases in the productivity of river systems to the optimal can be achieved by taking recultivation and agricultural
measures within limits ensuring guaranteed annual restoration of natural resources (the volume and regime of the water flow,
fertility of flood-plain areas, water supply, optimal conditions for river processes, etc.).
As studies have indicated, river systems without active continuous preservation and technically literate use of their
natural resources cannot exist under rather high levels of development in the national economy: degradation of individual rivers
and their segments occurs right up to their death. The matter of the preservation and rational use of rivers should be entrusted
to a special technical service that can be created for each river system with a medium river at the head. Conversion from
spontaneous use of river resources to their literate engineering exploitation is required.
Measures that stimulate natural creative forces and useful processes are based on the principle of the preservation and
use of rivers. Their active origin is in the water flow.
To implement this principle, it is necessary to create the possibility of control over the river system by taking required
organizational, agrotechnical, forest-reclamation, hydrotechnical, sanitary-technical, and operational measures.
The means of controlling a natural-technical riparian water-distribution system should affect the following elements,
which ensure the preservation and productivity of the rivers:
Translated from Gidrotekhnicheskoe Stroitel'stvo, No. 12, pp. 8-9, December, 1992.
0018-822CJ/92/2612-0767512.50 9 Plenum Publishing Corporation 767
Principles of the preservation and use of small and medium rivers
Journal Power Technology and Engineering (formerly Hydrotechnical Construction)
Publisher Springer New York
ISSN 1570-145X (Print) 1570-1468 (Online)
Issue Volume 26, Number 12 / December, 1992
DOI 10.1007/BF01545814
Pages 767-768
Subject Collection Engineering
SpringerLink Date Monday, May 02, 2005
Thursday, September 3, 2009
Monday, August 17, 2009
What's Next in River Preservation
The landscape is fairly bleak for the river preservationist these days.
Most of the local water protection has fallen under the umbrella of government authorities - in Ontario ( a side effect of Walkerton)
The Navigable Waters Protection Act has been gutted.
The Environmental Protection Act has no teeth.
The government has no patience for NGO's acting in the public interest: The Justice Department is still asking Les Amis for Court Costs? - initially waived by the lower court justice Noel.
There is no National Water Policy in Canada.
The Tar Sands project continues to build up sludge in its tar ponds, all set to be dumped by into the Athabasca river.
The Salmon have not started their migration up the Fraser River
The Ice Sheets are melting.
Cheery stuff, this.
And so it appears that this author has nothing to say that can possibly make a difference. The shot gun approach is valueless and I have no target for my sniper rifle. I think I'm done on this front unless somebody out there can offer up a suggestion?
Most of the local water protection has fallen under the umbrella of government authorities - in Ontario ( a side effect of Walkerton)
The Navigable Waters Protection Act has been gutted.
The Environmental Protection Act has no teeth.
The government has no patience for NGO's acting in the public interest: The Justice Department is still asking Les Amis for Court Costs? - initially waived by the lower court justice Noel.
There is no National Water Policy in Canada.
The Tar Sands project continues to build up sludge in its tar ponds, all set to be dumped by into the Athabasca river.
The Salmon have not started their migration up the Fraser River
The Ice Sheets are melting.
Cheery stuff, this.
And so it appears that this author has nothing to say that can possibly make a difference. The shot gun approach is valueless and I have no target for my sniper rifle. I think I'm done on this front unless somebody out there can offer up a suggestion?
Thursday, August 13, 2009
Hydro Quebec, Kipawa River, Les Amis and Things in General
The plan has been to divert the Kipawa through an entirely new channel/outflow to capture the entire potential between the height of Lake Kipawa and Lake Temiskaming.
I'm not sure about the 132 MW figure. Some have said that it would require the diversion of water from the Dumoine river as well.
As for the EA, it is proponent driven, and I don't know of any cases recently where the EA has stopped development of projects like this.
I do remember seeing a paper abstract that was to be presented at the International Impact Assessment Association by two Hydro Quebec engineers of which Rougon was one. They said that calculating the "reserve flow" was the main issue associated with the Tabaret project. Reserve Flow concerns the minimum amount of water they could leave in the Kipawa and I think that was around 11 cfs and in any case the Laniel Dam was designed specifically to release that amount of water.
The process will involve an EA but my prediction is that the EA will suggest no significant environmental effect... I predict that the province will assign water rights to Quebec Hydro, that they will grant all the necessary permits. I also predict that, most people will never hear about this or have very little input into it, but we may see some protests from the Algonquins. The media may cover it cursorily. Naturally the MRC in Temiskaming will be fully supportive as they have been waiting for their $400,000 a year payments as promised since 1998.
Laniel have their new renovated dam, I assume they will be happy about this project as well as they will see any residual/spin off construction dollars as "good" for Laniel.
It may be useful to have Les Amis submit letters to Hydro Quebec, the Quebec Minsitry of Natural Resources to be put on the mailing list for any announcements or notices concerning public meetings and mailings - they'll do that but everything will be in French.
I think we need other ideas about how to proceed strategically on this file. Fondation Rivieres (FR), the Montreal based river preservation group has been notably mute about the Kipawa. when they did their magazine spread on River Preservation with Roy Dupuis they didn't mention the Kipawa at all. But they may be able to assist us now that Tabaret is back on the Strategic Plan.
I know that the Montreal Paddling Club is our major supporter on this file. We should try to support their efforts as much as possible, to alert the Quebec Media to at least ensure that the process is kept open to public input even if we think the end result is assured.
People will ask years from now, "what did you do while all this was happening?" Our consciences should be clear.
“Les Ami(e)s de la rivière Kipawa” (sic!) is a published link on the FR site. It rather appears that the organization went dormant in May 2008 based on the lack of activity.
The Montreal Club does have many other good whitewater destinations within easy reach of Montreal but the Club gave Les Ami’s 3k for the first crack at the legal challenge of the environmental assessment for the Laniel dam refurbishment.
The Hydro Quebec plan is that the annual energy to be generated at Tabaret is 0.7 TWh. Compare that to the proposed 132 MW generating capacity. The generating capacity can be as much as HQ chooses to install but the annual energy out is strictly a function of the potential (head) and the volume of water passed through the station. The apparent average utilization of the proposed 132MW station is 22%
The potential Dumoine watershed diversion is not far fetched. HQ provided for diverting part of the Moise watershed into their Sainte-Marguerite project. And they seem to be about to do just that.
I'm not sure about the 132 MW figure. Some have said that it would require the diversion of water from the Dumoine river as well.
As for the EA, it is proponent driven, and I don't know of any cases recently where the EA has stopped development of projects like this.
I do remember seeing a paper abstract that was to be presented at the International Impact Assessment Association by two Hydro Quebec engineers of which Rougon was one. They said that calculating the "reserve flow" was the main issue associated with the Tabaret project. Reserve Flow concerns the minimum amount of water they could leave in the Kipawa and I think that was around 11 cfs and in any case the Laniel Dam was designed specifically to release that amount of water.
The process will involve an EA but my prediction is that the EA will suggest no significant environmental effect... I predict that the province will assign water rights to Quebec Hydro, that they will grant all the necessary permits. I also predict that, most people will never hear about this or have very little input into it, but we may see some protests from the Algonquins. The media may cover it cursorily. Naturally the MRC in Temiskaming will be fully supportive as they have been waiting for their $400,000 a year payments as promised since 1998.
Laniel have their new renovated dam, I assume they will be happy about this project as well as they will see any residual/spin off construction dollars as "good" for Laniel.
It may be useful to have Les Amis submit letters to Hydro Quebec, the Quebec Minsitry of Natural Resources to be put on the mailing list for any announcements or notices concerning public meetings and mailings - they'll do that but everything will be in French.
I think we need other ideas about how to proceed strategically on this file. Fondation Rivieres (FR), the Montreal based river preservation group has been notably mute about the Kipawa. when they did their magazine spread on River Preservation with Roy Dupuis they didn't mention the Kipawa at all. But they may be able to assist us now that Tabaret is back on the Strategic Plan.
I know that the Montreal Paddling Club is our major supporter on this file. We should try to support their efforts as much as possible, to alert the Quebec Media to at least ensure that the process is kept open to public input even if we think the end result is assured.
People will ask years from now, "what did you do while all this was happening?" Our consciences should be clear.
“Les Ami(e)s de la rivière Kipawa” (sic!) is a published link on the FR site. It rather appears that the organization went dormant in May 2008 based on the lack of activity.
The Montreal Club does have many other good whitewater destinations within easy reach of Montreal but the Club gave Les Ami’s 3k for the first crack at the legal challenge of the environmental assessment for the Laniel dam refurbishment.
The Hydro Quebec plan is that the annual energy to be generated at Tabaret is 0.7 TWh. Compare that to the proposed 132 MW generating capacity. The generating capacity can be as much as HQ chooses to install but the annual energy out is strictly a function of the potential (head) and the volume of water passed through the station. The apparent average utilization of the proposed 132MW station is 22%
The potential Dumoine watershed diversion is not far fetched. HQ provided for diverting part of the Moise watershed into their Sainte-Marguerite project. And they seem to be about to do just that.
Friday, July 31, 2009
EA needs to be done?
What I find offensive is the "cats in the bag" attitude about the project. It 'will' be put into service by 2015, the EA would be a sham.
http://www.hydroquebec.com/publications/fr/plan_strategique/pdf/plan-strategique-2009-2013.pdf
"groupe. Ils comprennent
notamment un projet de centrale – la centrale Tabaret – à proximité du barrage de Kipawa au
Témiscamingue et un autre projet sur la rivière Magpie, pour lesquels l’évaluation environnementale
détaillée reste à réaliser." page 23
TABARET REARS UGLY HEAD -
Some news on Hydro Quebec's dams for Magpie and Kipawa
Hydro Quebec released its 2009-2013 strategic plan today. It will invest $25 Billion in Quebec over the next five years. A large part of that will be on major hydro projects:
"Hydro-Québec will continue to develop major hydroelectric projects such
as Romaine and Petit-Mécatina, in addition to bringing 4,000 MW of wind power
onto the grid," said Thierry Vandal, Hydro-Québec's President and Chief
Executive Officer....
Hydro-Québec Production plans to develop a portfolio of 3,500 MW as
part of the Québec government's Northern Plan, including 3,000 MW in major
hydropower projects; these projects will be presented in a future Strategic
Plan.
from - http://www.newswire.ca/en/releases/archive/July2009/30/c9809.html
According to a story in Le Soleil, the other projects that are on the drawing board are dams for the Magpie (850 MW), a third dam on the Sainte-Marguerite (440 MW), and more dams on the Manicouagan (330 MW) all in the Cote-Nord region of Quebec (the North Shore of the Saint-Lawrence). The only project mentioned outside of that region is the Tabaret project on the Kipawa (132 MW).
The link for that article is:
http://www.cyberpresse.ca/le-soleil/affaires/actualite-economique/200907/29/01-888356-projets-hydroelectriques-hydro-quebec-donne-un-coup-daccelerateur.php
I'm not sure what his sources are but the Hydro Quebec plans for the other Cote-Nord projects including the Magpie were first leaked/mentioned in June:
http://www.lesaffaires.com/article/0/energie/2009-06-11/494652/hydroqueteacutebec-lorgne-la-rivietegravere-magpie.fr.html
The is the first we've heard about the Kipawa project in the media in a while.
Hydro Quebec released its 2009-2013 strategic plan today. It will invest $25 Billion in Quebec over the next five years. A large part of that will be on major hydro projects:
"Hydro-Québec will continue to develop major hydroelectric projects such
as Romaine and Petit-Mécatina, in addition to bringing 4,000 MW of wind power
onto the grid," said Thierry Vandal, Hydro-Québec's President and Chief
Executive Officer....
Hydro-Québec Production plans to develop a portfolio of 3,500 MW as
part of the Québec government's Northern Plan, including 3,000 MW in major
hydropower projects; these projects will be presented in a future Strategic
Plan.
from - http://www.newswire.ca/en/releases/archive/July2009/30/c9809.html
According to a story in Le Soleil, the other projects that are on the drawing board are dams for the Magpie (850 MW), a third dam on the Sainte-Marguerite (440 MW), and more dams on the Manicouagan (330 MW) all in the Cote-Nord region of Quebec (the North Shore of the Saint-Lawrence). The only project mentioned outside of that region is the Tabaret project on the Kipawa (132 MW).
The link for that article is:
http://www.cyberpresse.ca/le-soleil/affaires/actualite-economique/200907/29/01-888356-projets-hydroelectriques-hydro-quebec-donne-un-coup-daccelerateur.php
I'm not sure what his sources are but the Hydro Quebec plans for the other Cote-Nord projects including the Magpie were first leaked/mentioned in June:
http://www.lesaffaires.com/article/0/energie/2009-06-11/494652/hydroqueteacutebec-lorgne-la-rivietegravere-magpie.fr.html
The is the first we've heard about the Kipawa project in the media in a while.
Tuesday, July 7, 2009
Nicely flawed Letter from John Baird - Minister of Transport
Mr. Peter Karwacki
kayaky@hotmail.com
Dear Mr. Karwacki:
I am writing in response to your correspondence regarding the Navigable Waters Protection Act.
Over the last two years, this government has taken some historic and unprecedented steps to protect our country’s natural treasures, including expanding the Nahanni National Park Reserve, creating the Lake Superior National Marine Conservation Area and protecting the Great Bear Rainforest. These actions demonstrate the importance that our natural surroundings have for all Canadians and our need to protect and preserve them for future generations.
It is because of our government’s support for environmental preservation that we are proposing to modernize the Navigable Waters Protection Act.
Many outdoor enthusiasts have contacted Members of Parliament asking how these changes might impact recreational boating, paddling and fishing. I want to assure you that these changes would not jeopardize the waterways that many Canadians have valued for generations.
Let me be clear about one point—if one can paddle down a waterway, that waterway will still be subject to the requirements of the Act.
This Act has remained largely unchanged since the 1880s. Over time, the interpretation of the law expanded to include waterways—such as drainage ditches and creeks—that no one would consider navigable. Under the existing law, it does not matter if it is the Northumberland Strait’s Confederation Bridge to Prince Edward Island or a nearly dry stream—both need the same approvals and both require the same scrutiny from inspectors.
Obviously, we should be focusing our efforts on projects that can pose real issues for boating and navigation.
The proposed changes would exempt certain classes of works and waters from having to receive approval under the Act. This would include works that do not impede navigation and waters that are not considered navigable. That way, inspectors can spend more time on projects that could impact boaters as opposed to reviewing minor projects that, when constructed, pose no threat to the safety of navigation.
The revised legislation also creates new enforcement provisions that would allow the government to fine individuals who violate the Navigable Waters Protection Act. As it stands now (as it has since 1882), the largest penalty that may be imposed under the current legislation is a $5,000 fine—an amount many consider to be ‘the price of doing business.’ The new legislation will impose fines of up to $50,000 per infraction per day—a serious and meaningful deterrent to non-compliance.
I also want to highlight that these proposed changes were brought forward only after consultations with stakeholders over the last number of years. In 2008, the Standing Committee on Transport, Infrastructure and Communities brought forward recommended changes to the Act, and I am pleased to say that the government has fulfilled every one.
By bringing forward these changes, it is my hope that all Canadians will be able to safely experience our nation’s natural and breathtaking beauty on our waters.
Thank you for writing.
Sincerely,
John Baird, P.C., M.P
Thursday, July 2, 2009
Transfer of Refurbished Laniel Dam to Quebec Proceeding
"As announced by the Minister of PWGSC in August 2006, the Laniel Dam will be transferred to the province of Quebec once the reconstruction project is complete. At this point in time, we anticipate this occurring early in 2010. It is therefore likely that the dam will be under the ownership and control of the province of Quebec when your 2010 festival takes place."
Jeff Charlebois, PWGSC
Jeff Charlebois, PWGSC
Tuesday, June 23, 2009
Power Project proposed for Petawawa River - YIKES!
Petawawa River (Town Section)
Flowing through the heart of Petawawa, the “Pet” is a favorite
with locals for its many access points and outstanding play spots.
This undammed river peaks in late May, when Railroad, Lovers,
and Suicide are truly huge (six and up on the gauge). Most
paddlers opt to park and play at high levels at the Catwalk or
Golf Course rapids. Medium levels see the most interesting river
running, and levels below two on the gauge create technical
eddy hopping. Check local clubs for dates and times for group
paddles—a good way to learn the river is to paddle with a local.
Hello all:
Although we are gaining ground in terms of media and public awareness, we still need your help.
As the .pdf outlines, Petawawa Green Energy Development (PGED) is preparing their Waterpower Site Strategy. They are accepting comments from the public, and are then required / expected to address them when they submit the WSS to the Ministry of Natural Resources.
This is not the same as a public consultation for an EA. That comes later.
What I need from the kayaking and outdoors community is to take a second to send off an e-mail to info@petawawadevelopments.com in regards to 2KB21 at Big Eddy at the CPR Bridge and tell them you arent so keen on this development. Doesn't need to be pretty.
Step One: Click the e-mail address given above or below.
Step Two: Cut and paste this info below.
Step Three: Send.
Step Four: Tell a friend to do the same.
If you were so inclined you could Cc: mstillman@petawawa.ca; tspurrell@petawawa.ca; john.yakabuskico@pc.ola.org; GallaC@parl.gc.ca
+++
Im writing to express my concern about the 2KB21 site development on the Petawawa River. (Petawawa River at Big Eddy.)
I have concerns about the irreversible damage that this dam project will cause should it go ahead.
This includes but is not limited to:
- environmental damage during construction
- loss of a Canadian right to navigation
- loss of tourism revenue
- loss of recreational boating and swimming opportunities for residents
- destruction of habitat for flora and fauna
- damage to a major tributary of the heritage-designated Ottawa River
- damage to fish habitat for lake sturgeon and other species
- reduced flow rates in the Ottawa River
I would ask that the Waterpower Site Strategy document address these concerns.
As a citizen of Canada, I feel that this project is the loss of a PUBLIC resource for the gain of a PRIVATE enterprise, and I am strongly opposed to it proceeding.
These projects also involve roads in and out, powerlines, barbed wire fencing along the river, loss of portage, and then we get to enjoy all those STAY SAFE STAY CLEAR signs too.
Petawawa Green Energy Development Inc. has applied to the Ministry of Natural Resources to release a site on Crown land in order to develop it as a hydro-electric generating station. As a component of this process the proponent is required to submit a Waterpower Site Strategy (WSS) document. This document will describe the conceptual design and operation of the facility. Provided the WSS is accepted by the MNR, the proponent will attain Applicant of Record Status for site number 2KB21 at Big Eddy at the CPR Bridge (The Railway Rapid) on the Petawawa River. Current planning for this project estimates a generation potential of up to 10MW. Upon approval of the WSS and issuance of the Applicant of Record, the proponent will proceed with a Class Environmental Assessment for Waterpower Projects (Class EA) process as well as other permits and approvals required to secure land tenure. The Class EA is administered by the Ministry of the Environment and includes opportunities for public participation which will take place following this WSS consultation period. The Class EA consultation period will include notifications to the community regarding the availability of reports, studies and public open house events.
The proponent has retained ORTECH Environmental to assist them in this process.
Notice of Waterpower Site Strategy
Big Eddy at the CPR Bridge – Petawawa River
Interested parties are invited to comment in writing on this proposed development until July 14, 2009.
For more information please contact:
Leah Deveaux
ORTECH Environmental
804 Southdown Rd.
Mississauga ON; L5J 2Y4
Phone: 1-877-774-6560 ext. 305
905-822-4120 ext. 305
info@petawawadevelopments.com
Wednesday, June 17, 2009
Les Amis establishes new positive working relationship with Public Works Goods and Services
FREE SHUTTLE SERVICE PROVIDED
TO RECREATIONAL USERS AT LANIEL DAM
Public Works and Government Services Canada (PWGSC) will be offering a free shuttle service this summer and upcoming fall from Kipawa Lake to the Kipawa River during the reconstruction of the Laniel Dam. This special shuttle service is being offered again this year to allow recreational users with kayaks and canoes to bypass the dam and have safe access to the river, away from the potential hazards of the construction site. It gives users access from the lake to the river and takes them to the nearest and safest point downstream of the dam.
The shuttle service will be available on demand, from May 15 to November 15, 2009, using a pickup truck. The shuttle service will allow users to safely bypass the dam with kayaks and canoes, away from the construction area. This service, for recreational users coming from Lake Kipawa to the Municipal Quay in Laniel, will be available from 9:00 a.m. to 6:00 p.m. every day, including weekends. The shuttle will leave from the Municipal Quay in Laniel and travel to the rest stop, about 3 kilometres north of Laniel on Highway 101. Users will need to request the service by calling 819-629-4476. Signage will be posted to direct the public.
During the Kipawa Festival, from June 26 to June 28, 2009, the shuttle service will use two pickup trucks and will run continuously from 8:00 a.m. to 6:00 p.m., from the Town of Laniel Parking Lot to the Télébec station adjacent to the bridge at Highway 101. PWGSC will also install a launching area at a rest stop, situated 3 kilometres north of Laniel on Highway 101. Festival goers are invited to make it to this rest stop on their own between 8:00 a.m. and 6:00 p.m every day to access the river. Please note that camping activities will not be allowed at the rest stop.
For more information about this service, please telephone the PWGSC National Service Call Centre at 1-866-664-6608.
PWGSC will again be taking measures to protect the public from the hazards of the construction site. As in previous years, they ask festival participants to stay away from the fenced area of the construction site. Thank you once again for your help in this matter.
SERVICE DE NAVETTE GRATUIT OFFERT AUX
PLAISANCIERS AU BARRAGE LANIEL
Travaux publics et Services gouvernementaux Canada (TPSGC) offrira un service de navette gratuit cet été et jusqu’à l’automne du lac Kipawa à la rivière Kipawa durant la période de construction du barrage Laniel. Ce service spécial de navette est assuré de nouveau cette année pour permettre aux kayakistes et aux canoéistes de contourner le barrage et d’accéder de façon sécuritaire à la rivière, loin des dangers éventuels du chantier. Ce service permettra aux usagers d’accéder à la rivière à partir du lac, de même qu’au point en aval du barrage qui est le plus près et le plus sécuritaire.
Le service de navette, qui offrira une camionnette sur demande, sera disponible du 15 mai au 15 novembre 2008. Ce service permettra aux usagers de contourner le barrage en toute sécurité, en kayaks ou en canots, loin de la zone de construction. La navette, offerte aux plaisanciers qui arrivent au quai municipal de Laniel en provenance du lac Kipawa, sera disponible entre 9 h et 18 h, tous les jours, y compris les fins de semaine. La navette quittera le quai municipal de Laniel à destination du relais routier situé à environ trois kilomètres au nord de Laniel, aux abords de la route 101. Les usagers devront faire la demande de service de navette en composant le numéro 819-629-4476. On posera la signalisation nécessaire pour diriger le grand public.
Pendant le Festival de la Kipawa, du 26 au 28 juin 2009, le service de navette offrira deux camionnettes chaque jour de 8 h à 18 h. La navette partira du stationnement de Laniel et se rendra jusqu’à la station Télébec adjacent au pont près de la route 101. De plus, TPSGC installera une zone de mise à l’eau des embarcations à un relais routier situé à environ trois kilomètres au nord de Laniel, aux abords de la route 101. Les festivaliers seront invités à se rendre au relais routier par leurs propres moyens pour accéder à la rivière de 8 h à 18 h chaque jour. Veuillez prendre note qu’il ne sera pas permis de camper au relais routier.
Pour obtenir plus de renseignements sur ce service, veuillez téléphoner au Centre national d’appels de service de TPSGC, au
1-866-664-6608.
TO RECREATIONAL USERS AT LANIEL DAM
Public Works and Government Services Canada (PWGSC) will be offering a free shuttle service this summer and upcoming fall from Kipawa Lake to the Kipawa River during the reconstruction of the Laniel Dam. This special shuttle service is being offered again this year to allow recreational users with kayaks and canoes to bypass the dam and have safe access to the river, away from the potential hazards of the construction site. It gives users access from the lake to the river and takes them to the nearest and safest point downstream of the dam.
The shuttle service will be available on demand, from May 15 to November 15, 2009, using a pickup truck. The shuttle service will allow users to safely bypass the dam with kayaks and canoes, away from the construction area. This service, for recreational users coming from Lake Kipawa to the Municipal Quay in Laniel, will be available from 9:00 a.m. to 6:00 p.m. every day, including weekends. The shuttle will leave from the Municipal Quay in Laniel and travel to the rest stop, about 3 kilometres north of Laniel on Highway 101. Users will need to request the service by calling 819-629-4476. Signage will be posted to direct the public.
During the Kipawa Festival, from June 26 to June 28, 2009, the shuttle service will use two pickup trucks and will run continuously from 8:00 a.m. to 6:00 p.m., from the Town of Laniel Parking Lot to the Télébec station adjacent to the bridge at Highway 101. PWGSC will also install a launching area at a rest stop, situated 3 kilometres north of Laniel on Highway 101. Festival goers are invited to make it to this rest stop on their own between 8:00 a.m. and 6:00 p.m every day to access the river. Please note that camping activities will not be allowed at the rest stop.
For more information about this service, please telephone the PWGSC National Service Call Centre at 1-866-664-6608.
PWGSC will again be taking measures to protect the public from the hazards of the construction site. As in previous years, they ask festival participants to stay away from the fenced area of the construction site. Thank you once again for your help in this matter.
SERVICE DE NAVETTE GRATUIT OFFERT AUX
PLAISANCIERS AU BARRAGE LANIEL
Travaux publics et Services gouvernementaux Canada (TPSGC) offrira un service de navette gratuit cet été et jusqu’à l’automne du lac Kipawa à la rivière Kipawa durant la période de construction du barrage Laniel. Ce service spécial de navette est assuré de nouveau cette année pour permettre aux kayakistes et aux canoéistes de contourner le barrage et d’accéder de façon sécuritaire à la rivière, loin des dangers éventuels du chantier. Ce service permettra aux usagers d’accéder à la rivière à partir du lac, de même qu’au point en aval du barrage qui est le plus près et le plus sécuritaire.
Le service de navette, qui offrira une camionnette sur demande, sera disponible du 15 mai au 15 novembre 2008. Ce service permettra aux usagers de contourner le barrage en toute sécurité, en kayaks ou en canots, loin de la zone de construction. La navette, offerte aux plaisanciers qui arrivent au quai municipal de Laniel en provenance du lac Kipawa, sera disponible entre 9 h et 18 h, tous les jours, y compris les fins de semaine. La navette quittera le quai municipal de Laniel à destination du relais routier situé à environ trois kilomètres au nord de Laniel, aux abords de la route 101. Les usagers devront faire la demande de service de navette en composant le numéro 819-629-4476. On posera la signalisation nécessaire pour diriger le grand public.
Pendant le Festival de la Kipawa, du 26 au 28 juin 2009, le service de navette offrira deux camionnettes chaque jour de 8 h à 18 h. La navette partira du stationnement de Laniel et se rendra jusqu’à la station Télébec adjacent au pont près de la route 101. De plus, TPSGC installera une zone de mise à l’eau des embarcations à un relais routier situé à environ trois kilomètres au nord de Laniel, aux abords de la route 101. Les festivaliers seront invités à se rendre au relais routier par leurs propres moyens pour accéder à la rivière de 8 h à 18 h chaque jour. Veuillez prendre note qu’il ne sera pas permis de camper au relais routier.
Pour obtenir plus de renseignements sur ce service, veuillez téléphoner au Centre national d’appels de service de TPSGC, au
1-866-664-6608.
Wednesday, June 3, 2009
More Details on the upcoming 23rd Annual Kipawa River Rally
23rd Annual Kipawa River Rally
June 27 - 28, 2009 in Laniel Quebec
Whether you’ve been before, or you’re coming for the first time, mark this date on your calendar and plan to be there.
Come and find out why people say this is the best white water run in eastern Canada!
We are expecting GREAT Water Levels like we had last year: somewhere between 120 – 150 cms on the new gauge...ideal flow for the Rally.
The Kipawa is a PADDLER’S RIVER. It has been paddled by recreational boaters since 1968 and has been home to the annual Kipawa River Rally for 22 years.
• Camping will be available at the scenic Kipawa Lodge (takeout) and in the village of Laniel (putin)
• Kipawa Rally registration is $5.00 with proceeds going to support river preservation
• Camping at the Kipawa Lodge is $15 per night and includes the rally registration fee
• Fish fry dinner will be hosted by the Sorenson family on Saturday night at 6 pm
• Annual General Meeting of Les Amis de la Riviere Kipawa is scheduled for Saturday at 7:30 pm – election of executive members will take place and all are welcome to attend
• Rally T-shirts this year will have 2 messages: "I Speak for Canadian Rivers" (front) and “Kipawa River Rally 2009” (back)
Raft the Rally – River Rafting Doesn’t Get Much Better Than This
For information contact Esprit Rafting: http://www.whitewater.ca
COME TO THE 23nd ANNUAL KIPAWA RIVER RALLY JUNE 27-28
Information will be updated shortly on the Les Amis website: http://www.kipawariver.ca
Any questions about the rally can be sent to hawkeye@guelphkayakclub.ca
June 27 - 28, 2009 in Laniel Quebec
Whether you’ve been before, or you’re coming for the first time, mark this date on your calendar and plan to be there.
Come and find out why people say this is the best white water run in eastern Canada!
We are expecting GREAT Water Levels like we had last year: somewhere between 120 – 150 cms on the new gauge...ideal flow for the Rally.
The Kipawa is a PADDLER’S RIVER. It has been paddled by recreational boaters since 1968 and has been home to the annual Kipawa River Rally for 22 years.
• Camping will be available at the scenic Kipawa Lodge (takeout) and in the village of Laniel (putin)
• Kipawa Rally registration is $5.00 with proceeds going to support river preservation
• Camping at the Kipawa Lodge is $15 per night and includes the rally registration fee
• Fish fry dinner will be hosted by the Sorenson family on Saturday night at 6 pm
• Annual General Meeting of Les Amis de la Riviere Kipawa is scheduled for Saturday at 7:30 pm – election of executive members will take place and all are welcome to attend
• Rally T-shirts this year will have 2 messages: "I Speak for Canadian Rivers" (front) and “Kipawa River Rally 2009” (back)
Raft the Rally – River Rafting Doesn’t Get Much Better Than This
For information contact Esprit Rafting: http://www.whitewater.ca
COME TO THE 23nd ANNUAL KIPAWA RIVER RALLY JUNE 27-28
Information will be updated shortly on the Les Amis website: http://www.kipawariver.ca
Any questions about the rally can be sent to hawkeye@guelphkayakclub.ca
Wednesday, May 27, 2009
The Senate Committee hears Transport Canada's view of works on Minor Waterways
It is basically as forecast:
"It is not just that you do not have to apply for an approval, but you can also do whatever you want to it."
These pearls of wisdom from Bob Gowe, Manager, Navigable Waters Protection, Transport Canada: transcripts for the meeting of the Standing Senate Committee on Energy, Environment and Natural Resources which was held on Tuesday May 26 2009.
Mr. Gowe: We are not attempting to guide what gets built on the waterway. We are excluding the waterway.
Senator Banks: So I can build anything I want on it?
Mr. Gowe: Yes.
Senator Milne: You can build a four-lane highway over a creek that trickles down a bit in the spring and then is dead for the rest of the year?
Mr. Gowe: Certainly, from a navigational perspective, yes. There would be other laws that would apply. By saying “minor waters,” we are not attempting to dictate what occurs on those waters. If you are talking about a larger navigable water and you are wanting to put a minor work on it, we have clear criteria that you have to meet.
Senator Banks: I want to confirm what you said, that on a waterway that has been defined by a ministerial order as a minor waterway, I can build whatever I want?
Mr. Gowe: As long as that waterway meets the criteria in the minor waters order, yes.
Senator Banks: So I could impede navigation on a minor waterway?
Mr. Gowe: The whole idea of these minor waters being excluded was that there was not reasonable navigation possible on these waterways. That is the bar we have set with the minor waters policy.
Senator Mitchell: It is referred to as «minor navigable waterway.» So what you are saying is a waterway that is navigable, once it is declared minor navigable, is then vulnerable to having whatever anyone would like to build on it, over it, under it, to do that without any regard for the standards that otherwise would have applied under the Navigable Waters Protection Act. In fact, in excluding that waterway, even if it is navigable, it excludes the application of standards that would have applied otherwise.
Mr. Gowe: Right.
Senator Mitchell: It is not just that you do not have to apply for an approval, but you can also do whatever you want to it.
Mr. Gowe: Right.
Senator Mitchell: There is the nut of the problem.
Senator Banks: Oh.
Senator Mitchell: We thought that was not the case, so thank you for the clarification.
"It is not just that you do not have to apply for an approval, but you can also do whatever you want to it."
These pearls of wisdom from Bob Gowe, Manager, Navigable Waters Protection, Transport Canada: transcripts for the meeting of the Standing Senate Committee on Energy, Environment and Natural Resources which was held on Tuesday May 26 2009.
Mr. Gowe: We are not attempting to guide what gets built on the waterway. We are excluding the waterway.
Senator Banks: So I can build anything I want on it?
Mr. Gowe: Yes.
Senator Milne: You can build a four-lane highway over a creek that trickles down a bit in the spring and then is dead for the rest of the year?
Mr. Gowe: Certainly, from a navigational perspective, yes. There would be other laws that would apply. By saying “minor waters,” we are not attempting to dictate what occurs on those waters. If you are talking about a larger navigable water and you are wanting to put a minor work on it, we have clear criteria that you have to meet.
Senator Banks: I want to confirm what you said, that on a waterway that has been defined by a ministerial order as a minor waterway, I can build whatever I want?
Mr. Gowe: As long as that waterway meets the criteria in the minor waters order, yes.
Senator Banks: So I could impede navigation on a minor waterway?
Mr. Gowe: The whole idea of these minor waters being excluded was that there was not reasonable navigation possible on these waterways. That is the bar we have set with the minor waters policy.
Senator Mitchell: It is referred to as «minor navigable waterway.» So what you are saying is a waterway that is navigable, once it is declared minor navigable, is then vulnerable to having whatever anyone would like to build on it, over it, under it, to do that without any regard for the standards that otherwise would have applied under the Navigable Waters Protection Act. In fact, in excluding that waterway, even if it is navigable, it excludes the application of standards that would have applied otherwise.
Mr. Gowe: Right.
Senator Mitchell: It is not just that you do not have to apply for an approval, but you can also do whatever you want to it.
Mr. Gowe: Right.
Senator Mitchell: There is the nut of the problem.
Senator Banks: Oh.
Senator Mitchell: We thought that was not the case, so thank you for the clarification.
Monday, May 25, 2009
ECO JUSTICE Presentation to the SENATE committee hearings on the consequences of Bill c-10's changes to the navigable Waters Protection Act
1
UOttawa-Ecojustice Environmental Law Clinic
107-35 Copernicus Street, Ottawa, ON, Canada K1N 6N5
Phone: 613.562.5800 ext 3382 Fax: 613.562.5319
May 14, 2009
Clause-by-clause analysis of amendments to the Navigable Waters Protection Act presented to the Standing Committee on Energy, Environment and Natural Resources
c/o Lynn Gordon, Clerk of the Committee, via email: eenr-eern@sen.parl.gc.ca
Ecojustice’s submission on the above-mentioned matter, prepared for the presentation before the
Senate Committee on May 14, 2009.
Will Amos, Staff Lawyer (613) 562-5800 ext. 3378.
NAVIGABLE WATERS PROTECTION ACT AMENDMENTS
CLAUSE BY CLAUSE ANALYSIS
Section 2: New definition of “work” 4
Section 3(2): Ministerial power to combine related works for consideration under the NWPA 4
Section 4(1): NWPA amendments applicable to new construction only and all repairs, rebuilds and alterations 6
Section 2.1 and 4(2): Amnesty for Existing Crown Works. 7
Section 5: Tiered approval for construction of works 8
Section 5.1: Class Exemptions through Regulation or Ministerial Order 10
Section 6(4): Approval after commencement of construction 11
Section 7(1): Approval Fees (for construction of new works11
Section 9: Tiered Public Notification Requirements12
Section 12: Cabinet power to exempt classes of works and navigable waters 14
Section 13: Bridges over the St. Lawrence River now under NWPA jurisdiction16
Section 13(1): Ministerial power to exempt classes of works and waterways17
Sections 4(3), 6(1) and 11.1 Ministerial power to amend approvals19
Sections 33-39: New Inspection and Enforcement Powers 22
Section 40: Increased fines for contravention of the Act 25
Section 41: Five-Year Review of Act27
Section 2: New definition of “work”
The previous definition of “work” consisted of four parts. The first three parts enumerated specific examples (bridge, boom, dam, wharf, dock, pier, tunnel, pipe, telegraph, power cable or wire, dumping of fill, excavation of materials from the bed of a navigable water) and considered these “works” under the NWPA whether or not they interfered with navigation. The fourth part was a general clause to include any other structure, device or thing that may interfere with navigation. The new definition of “work” removes most of the enumerated list, retaining only the “dumping of fill” or “excavation of material”. The general clause of “any structure, device or thing” has been retained, but this clause has been narrowed by the limiting term “man-made.” The most notable change is that the new definition includes only those works that “may interfere with navigation.”
The new definition accords with the general trend of the new NWPA to narrow the class of works to which the NWPA applies. However, this narrowing may not be appropriate in the definition section of the Act. Doing so leaves it unclear who is responsible for determining if a work “may interfere with navigation” and therefore, whether the Act applies. The definition could be interpreted to mean that an owner or project proponent can make this determination, a obviously inappropriate proposition which would shift the onus onto the community to prove the impacts of proposed works and defend their own right to navigation. The previous definition clearly enumerated specific works for which interference with navigation could be presumed due to the nature of the works and thus, a proponent of these works was required to consult with the Minister to assess its effect on navigation. Section 5(2) of the previous Act then appropriately empowered the Minister to determine
whether a work did “not substantially interfere with navigation” and thus exempt the work from the Act at that stage.
Recommendation: Reinstate the previous definition of “work” and the Ministerial exemption clause (s. 5(2) of the repealed NWPA).
REPEALED VERSION
1.
"work" includes
(a) any bridge, boom, dam, wharf, dock, pier, tunnel or pipe and the approaches or other works necessary or appurtenant thereto,
(b) any dumping of fill or excavation of materials from the bed of a navigable water,
(c) any telegraph or power cable or wire, or
(d) any structure, device or thing, whether similar in character to anything referred to in this definition or not, that may interfere with navigation. “work” includes
NEW AMENDED VERSION
(a) any man-made structure, device or thing, whether temporary or
permanent, that may interfere with navigation; and
(b) any dumping of fill in any navigable water, or any excavation of
materials from the bed of any navigable water, that may interfere with
navigation.
2. Section 3(2): Ministerial power to combine related works for consideration under the NWPA5
Section 3(2) is an entirely new provision aimed at streamlining the approval process by allowing the Minister to combine related works for single consideration under the NWPA. Combining works for consideration can be appropriate when there are several similar crossings over the same waterway or over waterways with substantially the same characteristics.
This provision will likely be used for approval of works at mining and forestry sites as well as for large-scale projects like the Mackenzie Gas Pipeline Project. This provision could be useful to ensure that the cumulative effect of works and cumulative value of waterways is properly considered. For example, the Minister may find that a work does not interfere with navigation at certain crossings but does substantially interfere at other crossings. In this case, the approval of the entire project should be subject to the proponent meeting the terms and conditions at those crossings with interference to navigation. Care should be taken to ensure that this provision should not be used to assume similarities not actually present and allow NWPA approvals to ignore site-specific navigation issues.
Recommendation: Support new provision as appropriate effort to streamline approval process, but recommend guidelines to ensure that site-specific navigation issues are not ignored.
REPEALED VERSION
N/A Related works
NEW AMENDED VERSION
3. (2) If the Minister considers that two or more works are related, the Minister may, for the purposes of this Part,
deem them to be a single work.
Section 4(1): NWPA amendments applicable to new construction only and all repairs, rebuilds and alterations
The previous Section 4 exempted works that were constructed under the authority of Her Majesty in right of Canada, a province and the Territories before those regions became part of the Dominion of Canada. The new Section 4.(1) maintains the exemption for these historical works as well as all works constructed before the coming into force of the amendments on March 12, 2009. The new NWPA thus applies only to the construction of works commenced after the amendments passed and the rebuilding, repairing or altering of all works, historical and current.
Recommendation: Support new provision as properly making the new Act applicable only to new works and modifications.
REPEALED VERSION
3.Extent to which inapplicable to statutory works
4. Except the provisions of this Part that relate to rebuilding, repairing or altering any lawful work, nothing in this Part applies to any work constructed under the authority of an Act of Parliament or of the legislature of the former Province of Canada, or of the legislature of any province now forming part of Canada passed before that province became a part thereof.
NEW AMENDED VERSION
Application – works under Acts or orders
4. (1) Except for this section and the provisions of this Part that relate to rebuilding, repairing or altering any lawful work, nothing in this Part applies to any work constructed under the authority of
(a) an Act of Parliament or an order of the Governor in Council, if the work was constructed before the coming into force of this subsection;
(b) an Act of the legislature of a province or an order of the lieutenant governor in council of a province, if the work was constructed before the coming into force of this subsection;
(c) an Act of the legislature of a colony of Great Britain of which at least some portion now forms part of Canada; or
(d) Her Majesty in respect of such a colony.
Section 2.1 and 4(2): Amnesty for Existing Crown Works
Sections 2.1 and 4.(2) are new sections that clarifies that the Act applies to Crown works and “grandfathers” existing works currently or previously Crown-owned works. This section was included to clarify previous confusion about whether the Act applied to Crown works and deal with the repercussions of the Supreme Court of Canada decision that it does. Prior to the 1992 Supreme Court of Canada decision, Friends of the Oldman River Society v. Canada (Minister of Transport), the Crown assumed that it was not subject to the NWPA for works it constructed. The Court held that this interpretation was incorrect and found that the NWPA was applicable to Crown-constructed works retroactively back to the Act’s inception in 1882. Since then, modifications of existing Crown works for which no NWPA approval had been sought required an approval for the existing work prior to the submission of a subsequent application for the modification being considered.
This new provision gives de facto NWPA approvals to existing Crown works which currently lack NWPA approvals (due to the Crown’s misinterpretation of the Act). In effect, the provision is intended to expedite the approval process for the modification of Crown works by providing an “amnesty” for Crown works that were constructed without consideration of NWPA requirements.
Transport Canada admits that “there are multitudes of Crown works that have never received NWPA approval”, meaning that the impact of these works on the public right to navigation has never been assessed. This “amnesty” clause will perpetuate the diminished protection of the public right to navigation. Admittedly, requiring immediate NWPA approval of the multitudes of Crown works without NWPA approval would be onerous. A reasonable compromise would be to maintain the requirement to assess Crown works for their risk to navigation whenever the need for modification of the work arises. This provision requires an assessment focused solely on the modification, removing the opportunity to assess and mitigate any damage to navigation rights caused by the original work.
Recommendation: Remove this amnesty for existing Crown works (which do not have NWPA approval) so that the Crown is required, at a
minimum, to assess the effect on navigation caused by its existing works when it decides to modify.
REPEALED VERSION 4.
N/A Binding on Her Majesty
2.1 This Act is binding on Her Majesty in right of Canada or a province.
N/A Application – works owned or transferred
NEW AMENDED VERSION
4. (2) Except for this section and the provisions of this Part that relate to rebuilding, repairing or altering any lawful
work, nothing in this Part applies to
(a) works that are owned by Her Majesty in right of Canada or a province on the day on which this subsection
comes into force; or
(b) works whose ownership was transferred before the day on which this subsection comes into force to another
person by Her Majesty in right of Canada or a province or in respect of a colony of Great Britain of which at least
some portion now forms part of Canada.
Section 5: Tiered approval for construction of works
Section 5 of the previous Act required approval under the NWPA for four named works (bridges, booms, dams and causeways) and all other works that interfered with navigation. One approval process, requiring an assessment of the impact on navigation, environmental assessment and public consultation, applied to all works. The clause contained an exemption for works, other than the four named works, that the Minister considered did not “interfere substantially with navigation.” These four named works were assumed to generally always affect navigation and thus, the Minister should review the plans before construction of these works.
The new Section 5 abolishes the “blanket” approval requirement for the four named works and creates a tiered approach to the approval process for all works. Tier 1 consists of works that “substantially interfere with navigation” and are subject to the same conditions as all works in the previous Act. Tier 2 consists of works that “interfere, other than substantially, with navigation” and are subject to the relaxed approval requirements and construction timelines (at the Minister’s discretion). Tier 3 consists of exempted works, and is no longer explicitly
outlined in Section 5, as the exemption clause has been moved to the definition of “works” at the beginning of the amended Act. In addition, a new class of exemptions has been created by Sections 12 and 13 which allows the Cabinet and Minister, respectively, to exempt classes of works and waterways. No approval under the NWPA is required for these Tier 3 “exempted” works.
The previous Section 5 recognized that the four named works generally impact navigation and placed the onus on the owner to prove its lack of impact on navigation. It also provided an exemption clause, allowing the Minister to exempt works that do not interfere substantially with navigation. The new Section 5 removes the onus on the owner and the Minister and shifts the onus onto the community to prove the impact of proposed works, works for which they will often not receive any notice of or ability to comment on (see Section 9).
Recommendation: Reinstate the four named works, in recognition that these works generally impact navigation. Reinstate the Ministerial power to exempt works that do not substantially interfere with navigation, rather than embedding this exemption in the new definition of “work.” These changes would correct the shifts in onus onto the community to prove the impact on navigation of a proposed work for which it may never been given notice of or ability to comment on.
REPEALED VERSION
Approval of Works
5. (1) No work shall be built or placed in, on, over, under, through or across any navigable water without the Minister ’s prior approval of the work, its site and the plans for it.
NEW AMENDED VERSION
Construction of works in navigable waters
5. (1) No work shall be built or placed in, on, over, under, through or across any navigable water unless
(a) the work and the site and plans thereof have been approved by
the Minister, on such terms and conditions as the Minister deems
fit, prior to commencement of construction;
(b) the construction of the work is commenced within six months
Terms and conditions – substantial interference
(2) If the Minister considers that the work would substantially interfere with navigation, the Minister may impose any terms and conditions on the approval that the Minister considers appropriate, including requiring that construction of the work be started within six months and finished within three years of the day on which approval is granted or within any other period that the Minister may fix. Terms and conditions – other interference
(3) If the Minister considers that the work would interfere, other than substantially, with navigation, the Minister may impose any terms and conditions on the approval that the Minister considers appropriate, including requiring that construction of the work be started and finished within the period fixed by the Minister.
Extension of period
(4) The Minister may, at any time, extend the period by changing the day on which construction of the work shall be started or finished. and completed within three years after the approval referred to in paragraph (a) or within such further period as the Minister may fix; and
(c) the work is built, placed and maintained in accordance with the plans, the regulations and the terms and conditions set out in the approval referred to in paragraph (a).
Exceptions
(2) Except in the case of a bridge, boom, dam or causeway, this section does not apply to any work that, in the opinion of the Minister, does not interfere substantially with navigation.
Compliance with plans, regulations, and terms and conditions
(5) The work shall be built, placed, maintained, operated, used and removed in accordance with the plans and the regulations and with the terms and conditions in the approval.
Section 5.1: Class Exemptions through Regulation or Ministerial Order
Section 5(2) of the previous Act allowed the Minister to exempt works that did “not interfere substantially with navigation” except in the four named works. Section 5.1 is a new section that allows exemptions to the Act to be defined for certain classes of works and classes of waterways. The class exemptions are established by Cabinet regulation (Section 12) or ministerial order (Section 13). These classes are subject only to the general terms and conditions specified in the regulation or ministerial order. They are exempt from the approval process, fees, environmental assessment and public notification requirements in the Act. This provision allows the works to which the Act applies to be narrowed through Cabinet regulation and ministerial order rather than the Parliamentary process.
Recommendation: Abolish the class exemptions as an unnecessary provision. The previous Act already created exemptions for works that did not interfere substantially with navigation.
REPEALED VERSION
6.
Construction of works in navigable waters
5. (1) No work shall be built or placed in, on, over, under, through or across any navigable water unless
…(
2) Except in the case of a bridge, boom, dam or causeway, this section does not apply to any work that, in the opinion of the Minister, does not interfere substantially with navigation.
NEW AMENDED VERSION
Classes of works and navigable waters
5.1 (1) Despite section 5, a work may be built or placed in, on, over, under, through or across any navigable water without meeting the requirements of that section if the work falls within a class of works, or the navigable water falls within a class of navigable waters, established by regulation or under section 13.
Compliance
(2) The work shall be built, placed, maintained, operated, used and removed in accordance with the regulations or with the terms and conditions imposed under section 13.
Non-application
(3) Sections 6 to 11.1 do not apply to works referred to in subsection(1) unless there is a contravention of subsection (2).
Section 6(4): Approval after commencement of construction
Section 6.(4) permits the Minister to approve a work after construction has commenced. The amendments add the ability to impose terms and conditions on the approval.
Recommendation: Support the amendment.
REPEALED VERSION 6.
Approval after construction commenced
6. (4) The Minister may, subject to deposit and advertisement as in the case of a proposed work, approve a work and the plans and site of the work after the commencement of its construction and the approval has the same effect as if given prior to commencement of the construction of the work.
NEW AMENDED VERSION
Approval after construction started
6. (4) The Minister may, subject to deposit and notice as in the case of a proposed work, approve a work, its site and the plans for it and impose any terms and conditions on the approval that the Minister considers appropriate after the start of its construction. The approval has the same effect as if it was given before the start of construction.
Section 7(1): Approval Fees (for construction of new works)
Section 7.(1) specifies that the fee and time frame for validity of the approval is prescribed by regulations. The previous Act imposed fees for all approvals to construct works. The amended Act fees imposes fees only on Tier 1 works (Section 5(2)) and approvals obtained after construction has commenced (Section 6(4)).
Recommendation: Support the amendment.
REPEALED VERSION
6.
Fee payable by person applying for approval
7. (1) Where a person applies for an approval referred to in paragraph 5(1)(a) or subsection 6(4), the person shall pay a fee therefor prescribed by the regulations. Approval valid for period prescribed by regulations
(2) Where the Minister has approved a work, the approval is valid for a period of time prescribed by the regulations.
Fee payable by person applying for approval
NEW AMENDED VERSION
7. (1) A person who applies for approval of a work referred to in subsection 5(2) or 6(4) shall pay the fee prescribed by the
regulations.
Approval valid for period prescribed by regulations
(2) The approval of a work under section 5 is valid for the period prescribed by the regulations.
Section 9: Tiered Public Notification Requirements
Section 9 of the previous Act specified a single set of notification requirements for all works considered under the NWPA. The proponent was required to deposit the plans and site description with the Minister and at a publicly accessible location (land titles office or registrar of deeds) and notify the public through advertisement in the Canada Gazette and two newspapers for at least one month. This process ensured that the public was notified about all proposed works that could affect navigation and allowed to comment on the plans. The amended Section 9 creates a tiered approach to public notification. Tier 1 works (substantial interference) require public notification of the work plan and site description similar to the previous Act (except that publication is required in one, rather than two, newspapers). Tier 2 works (other interference) do not require any public notification unless directed by the Minister. Tier 3 works (exempted) never require
public notification under the Act. Public notification now occurs only when the Minister determines the work substantially interferes with navigation or when the Minister exercises the discretion for works that interfere, other than substantially. In these cases, the Minister will accept written submissions only (not oral) for 30 days after public notification. The provision grants the Minister a new discretionary power to require proponents to deposit the plans for the management and operation for Tier 1 works only. The amendment creates a situation where the public will never be notified of the majority of works approved under the Act. Combined with the shift in onus to the community to prove whether a work “may” interfere with navigation (due to the new definition of “work”), this results in a situation where many impacts on navigation may occur unnoticed or at best, noticed after-the-fact. The amended Act attempts to mitigate the increased risk brought on by the relaxed approval process and reduced public notification by establishing increased enforcement powers
(Sections 4(3), 11(1)(1), 33 to 40) but these powers are after-the-fact efforts triggered only when damage to navigation rights is imminent or already occurring. Transport Canada admits that it relies on the community to identify contraventions of the Act, and the public will be able to carry out its role in the protection of navigation rights only if it is given reasonable notice of the works approved under the Act.
Recommendation: Restore public notification requirements for all Tier 1 and 2 works to ensure that the community can properly assist the Ministry in ensuring reasonable protection of the right to navigation.
REPEALED VERSION
Notice and deposit of plans
9. (1) A local authority, company or individual proposing to construct any work in navigable waters may apply to the Minister for approval by depositing the plans for its design and construction and a description of the proposed site with the Minister.
5.
NEW AMENDED VERSION
Deposit of plans and description
9. (1) A local authority, company or person proposing to construct, in navigable waters, any work for which no sufficient sanction otherwise exists may deposit the plans thereof and a description of the proposed site with the Minister, and a duplicate of each in the office of the registrar of deeds or the land titles office for the district,
county or province in which the work is proposed to be constructed, and may apply to the Minister for approval thereof.
Plans for management and operation
(2) If the Minister considers that the work would substantially interfere with navigation, the Minister may also require that the local authority, company or individual deposit the plans for the management and operation related to the work.
Deposit and notice — substantial interference
(3) If the Minister considers that the work would substantially interfere with navigation, the Minister shall direct the local authority, company or individual to
(a) deposit all plans in the local land registry or land titles office or any other place specified by the Minister; and
(b) provide notice of the proposed construction and the deposit of the plans by advertising in the Canada Gazette and in one or more newspapers that are published in or near the place where the work is to be constructed. The plans shall be deposited and notice shall be provided in the form and manner specified by the Minister.
Deposit and notice — other interference
(4) If the Minister considers that the work would interfere, other than substantially, with navigation, the Minister may direct the local authority, company or individual to deposit the plans in the local land registry or land titles office or any other place specified by the Minister, and to provide notice of the proposed construction and the deposit of the plans as the Minister considers appropriate.
(2) [Repealed, 1993, c. 41, s. 8]
(3) The local authority, company or person referred to in subsection
(1) shall give one month’s notice of the deposit of plans and application by advertisement in the Canada Gazette, and in two
newspapers published in or near the locality where the work is to be constructed.
Comments
(5) Interested persons may provide written comments to the Minister within 30 days after the publication of the last notice referred to in subsection (3) or (4).
Section 12: Cabinet power to exempt classes of works and navigable waters
Section 12 of the previous Act granted the Cabinet powers to prescribe orders deemed expedient for navigation purposes. These powers specifically included the power to prescribe application fees and the period of time that an approval is valid. The Cabinet could specify a penalty for a contravention of its orders or regulations of a fine (max $500) and/or imprisonment (max six months). The amended Section 12 greatly expands the powers of the Cabinet, adding five new prescribed powers. The most notable addition is Section 12.(1)(e) which permits the Cabinet to exempt classes or works or navigable waters for exemption from NWPA approval. This provision does not specify any criteria to guide the exercise of this power, thereby granting the Cabinet unfettered power to create exemptions to the Act at its sole discretion without notification or consultation of its stakeholders. The only limits on these Cabinet powers are imposed by the Statutory Instruments Act, which specifies that the regulation must be published in the Canada Gazette 23 days after it
is registered and is subject to Parliamentary review. Cabinet decisions are not always subject to Access to Information requests or judicial review.
Recommendation: Establish criteria to guide the exercise of this sweeping Cabinet power to exempt classes or works and waterways from application of the Act and require meaningful public consultation to ensure all potential impacts on the right to navigation are considered prior to the registration of the exemption regulation.
REPEALED VERSION
NEW AMENDED VERSION
6.
Orders and regulations by Governor in Council
12. (1) The Governor in Council may make such orders or regulations as the Governor in Council deems expedient for
navigation purposes respecting any work to which this Part applies or that is approved or the plans and site of which are approved under any Act of Parliament and, without restricting the generality of the foregoing, may make regulations
(a) prescribing the fees payable to the Minister on an application for an approval; and (b) prescribing, for the purpose of subsection 7(2), the period of time for which an approval of a work is valid.
Punishment for contravening order or regulation
(2) Any order or regulation made under this section may prescribe therein the punishment to be imposed on summary conviction for any contravention thereof but that punishment shall not exceed a Orders and regulations by Governor in Council
12. (1) The Governor in Council may make any orders or regulations that the Governor in Council deems expedient for navigation purposes respecting any work to which this Part applies or that is approved or the plans and site of which are approved under any Act of Parliament or order of the Governor in Council, and may make regulations
(a) prescribing the fees payable to the Minister on an application for an approval under this Part;
(b) respecting the grant, amendment, renewal, suspension and cancellation of approvals under this Part;
(c) prescribing the period for which an approval under this Part is valid;
(d) respecting notification requirements for a change in ownership in a work;
(e) establishing classes of works or navigable waters for the
fine of five hundred dollars or imprisonment for a term of six months or both.
Who is subject to orders or regulations
(3) A local authority, company or person constructing, owning or in possession of any work referred to in subsection (1) is subject to orders or regulations made under this section. purposes of subsection 5.1(1);
(f) respecting the placement, construction, maintenance, operation, safety, use and removal of works; and
(g) for carrying out the purposes and provisions of this Part.
Related works
(2) If the Governor in Council considers that two or more works are related, the Governor in Council may, for the purposes of subsection
(1), deem them to be a single work.
Incorporation by reference
(2.1) The regulations may incorporate any material by reference, regardless of its source, either as it exists on a particular date or as amended from time to time.
Incorporated material not a regulation
(2.2) Material does not become a regulation for the purposes of the Statutory Instruments Act because it is incorporated by reference.
Section 13: Bridges over the St. Lawrence River now under NWPA jurisdiction
Section 13 of the previous NWPA required that all bridges constructed over the St. Lawrence River receive formal Parliamentary approval. This section was repealed in the amended Act, enabling these works to be approved under the NWPA. This provision expedites the approval process for bridges over this River.
Recommendation: Support the provision as a reasonable effort to streamline projects on the St. Lawrence River.
REPEALED VERSION
7.
No approval of St. Lawrence bridges
13. No approval of the site or plans of any bridge over the St.Lawrence River shall be given under this Part.
N/A
NEW AMENDED VERSION
Section 13(1): Ministerial power to exempt classes of works and waterways
Section 13(.1) of the previous Act allowed ministerial orders to be used only when immediate action was required to deal with significant risks to safety or security. The orders were intended to be temporary, remaining in effect for a maximum of 14 days unless approved by Cabinet. These “interim orders” were to be tabled in Parliament within 15 days and published in the Canada Gazette within 23 days. The new amendments greatly expand the scope of the ministerial orders. The previous authorization to use orders to deal with significant safety and security risks has been removed. It is replaced with the ministerial power to establish classes of works or navigable waters to be exempt from NWPA approval (similar to the Cabinet power in Section 12). Like Section 12, there are no criteria to guide the exercise of this power, thereby granting an unfettered power for the Minister to exempt works at its sole discretion without notification or consultation of the
public. The only notification requirement is after-the-fact publication in the Canada Gazette, which does not provide any opportunity for public comment. Orders have no time limit unlike the previous Act. Most extraordinary is the fact that these Orders are exempt from the Statutory Instruments Act, shielding it from Parliamentary review. The Cabinet power to exempt works is not exempt from the SIA, and it is unclear how this exemption from Parliamentary review assists the Minister in carrying out the Act’s purpose to protect the public right to navigation. In effect, Section 13.(1) grants unfettered power to the Minister to exempt works from the NWPA without consultation with the public or Parliament both before and after issuance of the order.
Recommendation: Abolish this unfettered ministerial power to exempt works without guiding criteria or public and Parliamentary oversight. Class exemptions would still be possible through the Cabinet whose orders are at a minimum subject to Parliamentary review. In the alternative, establish criteria to guide the exercise of this sweeping ministerial power to exempt classes or works and waterways from application of the Act and require meaningful public consultation to ensure all potential impacts on the right to navigation are considered prior to the registration of the exemption regulation.
REPEALED VERSION
NEW AMENDED VERSION
8.
Interim orders
13.1 (1) The Minister may make an interim order that contains any provision that may be contained in a regulation made under this Part if the Minister believes that immediate action is required to deal with a significant risk, direct or indirect, to safety or security.
Cessation of effect
(2) An interim order has effect from the time that it is made but ceases to have effect on the earliest of
(a) 14 days after it is made, unless it is approved by the Governor in Council, Orders
13. (1) For the purposes of section 5.1, the Minister may, by order,
(a) establish classes of works or navigable waters; and
(b) impose any terms and conditions with respect to the placement, construction, maintenance, operation, safety, use and removal of those classes of works or works that are built or placed in, on, over, under, through or across those classes of navigable waters.
Exemption from Statutory Instruments Act
(2) An order under subsection (1)
(a) is not a statutory instrument within the meaning of the Statutory
(b) the day on which it is repealed,
(c) the day on which a regulation made under this Part, that has the same effect as the interim order, comes into force, and
(d) one year after the interim order is made or any shorter period that may be specified in the interim order.
Contravention of unpublished order
(3) No person shall be convicted of an offence consisting of a contravention of an interim order that, at the time of the alleged contravention, had not been published in the Canada Gazette unless it is proved that, at the time of the alleged contravention, the person had been notified of the interim order or reasonable steps had been taken to bring the purport of the interim order to the notice of those persons likely to be affected by it. Exemption from Statutory Instruments Act
(4) An interim order
(a) is exempt from the application of sections 3, 5 and 11 of the Statutory Instruments Act; and
(b) shall be published in the Canada Gazette within 23 days after it is made.
Deeming
(5) For the purpose of any provision of this Part other than this section, any reference to regulations made under this Act is
deemed to include interim orders, and any reference to a regulation made under a specified provision of this Act is deemed to include a reference to the portion of an interim order containing any provision that may be contained in a regulation made under the specified provision.
Tabling of order
(6) A copy of each interim order must be tabled in each House of Parliament within 15 days after it is made.
House not sitting
(7) In order to comply with subsection (6), the interim order may besent to the Clerk of the House if the House is not sitting.
Instruments Act; and
(b) shall be published in the Canada Gazette within 23 days after the day on which it is made.
Incorporation by reference
(3) An order may incorporate any material by reference, regardless of its source, either as it exists on a particular date or as amended from time to time.
9. Sections 4(3), 6(1) and 11.1 Ministerial power to amend approvals
Section 6(1) grants the Minister the power to order the removal or alteration, or to stop construction of unauthorized works and works constructed or maintained contrary to the terms and conditions of approval. This provision exists in both the previous and amended Act. New provisions, Sections 4(3) [historical and existing Crown works] and 11(1)(1) [works with NWPA approval] create powers for the Ministerto revoke NWPA approval even if the work is being constructed and maintained according to the approved plans. These sections allow the Minister to order the alteration or removal of approved works if satisfied that the work has become a danger to or interference with navigation due to time and changing navigational conditions. The Minister may suspend or cancel an approval if it was obtained by fraudulent means or the owner/work is in contravention of the Act. The Minister may also issue these orders “in the public interest.”
This is a broad ministerial power that forms part of the new increased “after-the-fact” enforcement powers created by the amendments. These powers appear to be intended to mitigate the increased risks undertaken due to the more relaxed approval process and reduced public consultation. These powers are reactive rather than preventative, allowing action only after the work “has become” a danger or interference, hence only once the damage is done. This provision provides poor protection to the right to navigation, acting contrary to the purpose of the legislation. Resources invested into a reactive enforcement effort may be better allocated to reinstating the original approval process with its increased requirements and public consultation. Alternatively, this section could be improved by triggering these enforcement powers when the work may, rather than has, become a danger or interference to ensure it has some prescriptive powers.
Recommendation: Replace “may” for “have” in the provision to allow more timely protection of navigation rights.
REPEALED VERSION
N/A
NEW AMENDED VERSION
Ministerial order (for historical works and Crown works without previous NWPA
approval)
4. (3) The Minister may order an owner of a work referred to in subsection (1)or (2) to alter or remove the work or to comply with any terms and conditions that the Minister, as he or she considers appropriate, may impose if the
Minister is satisfied that
(a) the work has become a danger to or an interference with navigation by reason of the passage of time and changing conditions in navigation of the navigable waters concerned; or
(b) the alteration or removal or the terms and conditions are in the public interest.
Minister’s power
(4) If the owner of the work fails to comply with an order given under subsection (3), the Minister may remove and destroy the work and sell, give away or otherwise dispose of the materials contained in the work.
Costs of removal, destruction or disposal
(5) If the Minister removes, destroys or disposes of a work under subsection
(4), the costs of and incidental to the removal, destruction or disposal, after deducting any sum that may be realized by sale or otherwise, are recoverable with costs in the name of Her Majesty in right of Canada from the owner.
Ministerial orders respecting unauthorized works
6. (1) Where any work to which this Part applies is built or placed without having been approved by the Minister, is
built or placed on a site not approved by the Minister, is not built or placed in accordance with plans so approved
or, having been so built or placed, is not maintained in accordance with those plans the Minister may
(a) order the owner of the work to remove or alter the work;
(b) where the owner of the work fails forthwith to comply with an order made pursuant to paragraph (a),
remove and destroy the work and sell, give away or otherwise dispose of the materials contained in the
work; and
(c) order any person to refrain from proceeding with the construction of the work where, in the opinion of the
Minister, the work interferes or would interfere with navigation or is being constructed contrary to this Act.
Ministerial orders respecting unauthorized works
6. (1) If any work to which this Part applies is built or placed without having been approved under this Act, is built or placed on a site not approved under this Act, is not built or placed in accordance with the approved plans and terms
and conditions and with the regulations or, having been built or placed as approved, is not maintained, operated, used or removed in accordance with those plans, those terms and conditions and the regulations, the Minister may
(a) order the owner of the work to remove or alter the work;
(b) where the owner of the work fails forthwith to comply with an order made pursuant to paragraph (a), remove and destroy the work and sell, give away or otherwise dispose of the materials contained in the work; and
(c) order any person to refrain from proceeding with the construction of the work where, in the opinion of the Minister, the work interferes or would interfere with navigation or is being constructed contrary to this Act.
N/A Amendment of approval (for works with NWPA approval)
11.1 (1) Subject to subsection (3), the Minister may amend an approval of a work if he or she is satisfied that
(a) the work has become a danger to or an interference with navigation by reason of the passage of time and changing conditions in navigation of the navigable waters concerned; or
(b) the amendment is in the public interest.
Suspension or cancellation
(2) Subject to subsection (3), the Minister may suspend or cancel an approval
if he or she is satisfied that
(a) the work is not being or has not been built, placed, maintained, operated, used or removed in accordance with the plans, the regulations or with any terms and conditions in the approval;
(b) the approval was obtained by a fraudulent or improper means or a misrepresentation of a material fact;
(c) the owner of the work has not paid a fine imposed under this Act;
(d) the owner of the work has contravened a provision of this Act or the regulations; or
(e) the suspension or cancellation is in the public interest, including that it is warranted by the record of compliance of the owner or of a principal of the owner under this Act.
Notice
(3) Before amending, suspending or cancelling an approval of a work, the Minister shall give the owner 30 days’ notice setting out the grounds on which the Minister relies for the amendment, suspension or cancellation. Not a statutory instrument
11.2 For greater certainty, an order given under subsection 4(3) or paragraph 6(1)(a) or (c) is not a statutory instrument within the meaning of the Statutory Instruments Act.
Sections 33-39: New Inspection and Enforcement Powers
The previous Act did not contain any inspection powers. The amended Act creates new expansive enforcement powers. The Minister may designate officials to administer and enforce the Act. The Act grants the designation official sweeping powers to investigate compliance with the Act including powers to enter places, direct persons to act or cease to act, copy, record and examine records and data. The official can obtain a warrant to enter a private residence when entry has been previously refused. The Act creates a legal duty for persons to assist the official in carrying out the investigation and creates an offence of providing false or misleading information or otherwise hindering the investigation. The designated official can obtain an injunction to order a person to act or refrain from acting when it is suspected that the person is about to or likely to commit an offence under the Act.
These enforcement powers are desirable in principle but combined with the less stringent approval requirements they represent an afterthe-fact approach to the protection of the right to navigation. The Act as a whole sets up a regime where works are approved with minimal assessment. The reduced scrutiny is supposedly mitigated by the increased enforcement powers. First, it is not clear that these extensive investigative powers are in accordance with Charter principles related to search and seizure. The effectiveness of this enforcement regime will depend on its implementation. To be effective, the Ministry would have to create a national enforcement team tasked with reviewing the ongoing compliance of works being constructed and operating pursuant to NWPA approvals. However, this would be a resource-intensive
task force that would not accord with Transport Canada’s efforts to streamline the NWPA program. In fact, Transport Canada has confirmed that it does not plan to create a new enforcement task force but will continue to rely on reports from the public and their own navigation officers. The Ministry depends on community reporting to identify contraventions, placing another onus on the community to “police” NWPA violations and protect their own right to navigation. This onus is onerous in light of the fact that the new amendments ensure that the majority of works will proceed without public notification. Thus, the community will not be aware of the projects that require inspection.
Recommendation: Support the new enforcement provisions but to ensure that these powers are meaningful, reinstate the public notification requirements of the previous Act to ensure the public is aware of works requiring monitoring. Alternatively, recommend the establishment of a national enforcement team tasked with monitoring compliance.
REPEALED VERSION
N/A
NEW AMENDED VERSION
DESIGNATION
33. For the purposes of the administration and enforcement of this Act and any regulation or order, the Minister
may designate persons or classes of persons to exercise powers in relation to any matter referred to in the
designation.
10.
N/A POWERS
Authority to enter
34. (1) A person who is designated to verify compliance or prevent non-compliance with this Act and any
regulation or order may, for that purpose, at any reasonable time, enter a work, vessel or swing or draw bridge, or
enter any other place in which they have reasonable grounds to believe the following items are located:
(a) a work or anything related to a work;
(b) a wreck, vessel, part of a vessel or other thing that obstructs or impedes navigation or renders it more difficult
or dangerous, or that is likely to do so;
(c) a ferry cable or swing or draw bridge, or anything related to one.
Certification
(2) On entering a place, the designated person shall, on request, produce to the person in charge of the place a
certification in the form established by the Minister attesting to the designation.
Powers
(3) The designated person may, for the purposes referred to in subsection (1), (a) examine anything that is found
in the place;
(b) remove any document or other thing from the place for examination or, in the case of a document, copying;
(c) direct any person to put into operation or cease operating any work, vessel or other conveyance, machinery or
equipment in the place;
(d) prohibit or limit access to the place for as long as specified;
(e) take photographs and make video recordings and sketches;
(f) use or cause to be used any computer system or data processing system at the place to examine any data
contained in, or available to, the system;
(g) reproduce any record, or cause it to be reproduced from the data, in the form of a printout or other intelligible
output and remove the printout or other output for examination or copying; and
(h) use or cause to be used any copying equipment at the place to make copies of any books, records, electronic
data or other documents.
Entry — private property
(4) The designated person, in carrying out their functions under this section, and a person accompanying them
may enter on and pass through or over private property without being liable for doing so.
Duty to assist
35. The owner or person who is in charge of a place that is entered under subsection 34(1) and every person who
is in the place shall
(a) give a designated person who is carrying out their functions under section 34 all reasonable assistance; and
(b) provide them with any information that they may reasonably require.
Warrant for dwelling-house
36. (1) If any place referred to in subsection 34(1) is a dwelling-house, the designated person may not enter it
without the consent of the occupant except under the authority of a warrant issued under subsection (2).
Authority to issue warrant
(2) On ex parte application, a justice of the peace may issue a warrant authorizing the person who is named in it to
enter a dwelling house, subject to any conditions that may be specified in the warrant, if the justice is satisfied by
information on oath that
(a) the dwelling-house is a place referred to in subsection 34(1);
(b) entry to the dwelling-house is necessary for the purpose of verifying compliance or preventing non-compliance
with the Act and any regulation or order; and
(c) entry to the dwelling-house was refused by the occupant or there are reasonable grounds to believe that entry
will be refused or consent to entry cannot be obtained from the occupant.
N/A PROHIBITIONS
False statements or information
37. (1) No person shall knowingly, orally or in writing, make a false or misleading statement or provide false or
misleading information, in connection with any matter under this Act, to a designated person who is carrying out
their functions under section 34.
Obstruction
(2) No person shall knowingly obstruct or hinder a designated person who is carrying out their functions under
section 34.
N/A INJUNCTION
Injunction
38. (1) If, on the application of the Minister, it appears to a court of competent jurisdiction that a person has done,
is about to do or is likely to do any act constituting or directed toward the commission of an offence under this Act,
the court may issue an injunction ordering a person named in the application
(a) to refrain from doing an act that, in the opinion of the court, may constitute or be directed toward the
commission of the offence; or
(b) to do an act that, in the opinion of the court, may prevent the commission of the offence.
Notice
(2) No injunction may be issued under subsection (1) unless 48 hours’ notice is served on the party or parties
named in the application or the urgency of the situation is such that service would not be in the public interest.
N/A IMMUNITY
Not personally liable
39. (1) Servants of the Crown, as those terms are defined in section 2 of the Crown Liability and Proceedings Act,
are not personally liable for anything they do or omit to do in good faith under this Act.
Crown not relieved
(2) Subsection (1) does not, by reason of section 10 of the Crown Liability and Proceedings Act, relieve the Crown
of liability for a tort or extracontractual civil liability to which the Crown would otherwise be subject.
Section 40: Increased fines for contravention of the Act
The previous Act contained several provisions that established specific offences through contravention of the Act. Each offence triggered penalties ranging from a fine of $500 to $5000, and imprisonment of up to six months.
The amended Act consolidates the “Offences and Punishment” provisions into one section and increases the maximum fine to $50,000.
The previous fines were considered inadequate to deter contravention of the Act in light of the overall scope of most projects constructed under the Act.
Recommendation: Support the increased fines as a more realistic deterrent to contraventions to the Act.
REPEALED VERSION
11.
Offence and punishment (orders respecting unauthorized works)
6.(2) Any owner or person who fails to comply with an order given to that owner or person pursuant to paragraph (1)(a) or (c) is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars.
Punishment for contravening order or regulation (Cabinet order or regulation)
NEW AMENDED VERSION
12. (2) Any order or regulation made under this section may prescribe therein the punishment to be imposed on summary
conviction for any contravention thereof but that punishment shall not exceed a fine of five hundred dollars or imprisonment for a term of six months or both.
Failure to comply with order (removal of obstacle or obstruction)
19. (2) Where a person to whom an order is given pursuant to subsection (1) fails forthwith to comply with the order,
(a) the person is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars; and
(b) the Minister may order the vessel to be removed to such place as the Minister deems fit, and the costs of removal of the vessel shall be recoverable against the person as a debt due to Her Majesty.
OFFENCES AND PUNISHMENT
Offence
40. (1) Every person is guilty of an offence and is liable on summary conviction to imprisonment for a term of not more than six months or to a fine of not more than $50,000, or to both, if the person contravenes
(a) an order given under subsection 4(3), paragraph 6(1)(a) or (c) or subsection 19(1);
(b) an interim order made under section 13.1 or 32;
(c) an order or regulation made under section 12 or 30; or
(d) subsection 15(1) or section 21, 22, 35 or subsection 37(1) or (2).
Vessel liable for fine
(2) If any materials referred to in section 22 are thrown from or deposited by a vessel and a conviction is obtained for that activity, the vessel is liable for any fine that is imposed and may be detained by any port warden or the chief officer of customs at any port until the fine is paid.
Continuing offence
(3) If the offence under subsection (1) is committed or continued on more than one day, the person who commits it is liable to be convicted for a separate offence for each day on which it is committed or continued.
Failure to give notice or to signal or light
26. Every person required by this Part to give notice to the Minister or to the chief officer of customs at any port of any obstruction or obstacle to navigation, or to place and maintain a sufficient signal orlight to indicate the position of the obstruction or obstacle, who failsto give that notice or to place or maintain that signal or light is guilty of an offence.
Contravention of section 21 (throwing or deposit of sawdust)
27. Any person who contravenes section 21 is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars for each offence.
Fine (throwing or deposit of stone)
28. Any person who contravenes section 22 is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars and, in any case where any materials referred to in that section are thrown from or deposited by a vessel and a conviction is obtained therefor, the vessel is liable for the fine andmay be detained by any port warden or the chief officer of customs at any port until the fine is paid.
Punishment for contravention of regulation (regulation of ferry cables and swing or draw bridges)
31. Any regulation made under this Part may prescribe the punishment to be imposed on summary conviction for any
contravention thereof but that punishment shall not exceed a fine of five hundred dollars or imprisonment for a term of six months or both.
Section 41: Five-Year Review of Act
The amended Act features a new provision requiring a 5-year review of the amendments. Transport Canada states that the review enables the correction of any deficiencies identified through the implementation of the amendments. It specifically notes that the “ongoing need of the use of these Orders would be assessed”, implicitly admitting the extraordinary nature of the use of the ministerial orders to create exemptions to the Act. The Department states that additional changes could be made to the Act to more effectively manage the increasing shared use of Canada’s waterways. Several stakeholders that were not consulted in the drafting of the amendments have also expressed the need for changes to the Act to better balance the right to navigation with efficiency concerns. It is clear that this Act is in transition and requires additional work to achieve the proper balance between the right to navigation and the need for efficiency. The five-year review clause is a beneficial provision allowing for public consultation about the Act in general in five years. However, it is not
an adequate replacement for the meaningful public consultation throughout the approval process for specific works that has been repealed in the amendments.
Recommendation: Support the five-year review clause, but ensure that other means of public consultation are reestablished.
REPEALED VERSION of the NWPA 12.
N/A
NEW AMENDED VERSION of the NWPA
Review of Act
41. (1) A review of the provisions and the operation of this Act must be completed by the Minister before the end of the fifth year after the day on which this section comes into force.
Tabling of report
(2) The Minister shall cause a report of the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the report has been completed.
UOttawa-Ecojustice Environmental Law Clinic
107-35 Copernicus Street, Ottawa, ON, Canada K1N 6N5
Phone: 613.562.5800 ext 3382 Fax: 613.562.5319
May 14, 2009
Clause-by-clause analysis of amendments to the Navigable Waters Protection Act presented to the Standing Committee on Energy, Environment and Natural Resources
c/o Lynn Gordon, Clerk of the Committee, via email: eenr-eern@sen.parl.gc.ca
Ecojustice’s submission on the above-mentioned matter, prepared for the presentation before the
Senate Committee on May 14, 2009.
Will Amos, Staff Lawyer (613) 562-5800 ext. 3378.
NAVIGABLE WATERS PROTECTION ACT AMENDMENTS
CLAUSE BY CLAUSE ANALYSIS
Section 2: New definition of “work” 4
Section 3(2): Ministerial power to combine related works for consideration under the NWPA 4
Section 4(1): NWPA amendments applicable to new construction only and all repairs, rebuilds and alterations 6
Section 2.1 and 4(2): Amnesty for Existing Crown Works. 7
Section 5: Tiered approval for construction of works 8
Section 5.1: Class Exemptions through Regulation or Ministerial Order 10
Section 6(4): Approval after commencement of construction 11
Section 7(1): Approval Fees (for construction of new works11
Section 9: Tiered Public Notification Requirements12
Section 12: Cabinet power to exempt classes of works and navigable waters 14
Section 13: Bridges over the St. Lawrence River now under NWPA jurisdiction16
Section 13(1): Ministerial power to exempt classes of works and waterways17
Sections 4(3), 6(1) and 11.1 Ministerial power to amend approvals19
Sections 33-39: New Inspection and Enforcement Powers 22
Section 40: Increased fines for contravention of the Act 25
Section 41: Five-Year Review of Act27
Section 2: New definition of “work”
The previous definition of “work” consisted of four parts. The first three parts enumerated specific examples (bridge, boom, dam, wharf, dock, pier, tunnel, pipe, telegraph, power cable or wire, dumping of fill, excavation of materials from the bed of a navigable water) and considered these “works” under the NWPA whether or not they interfered with navigation. The fourth part was a general clause to include any other structure, device or thing that may interfere with navigation. The new definition of “work” removes most of the enumerated list, retaining only the “dumping of fill” or “excavation of material”. The general clause of “any structure, device or thing” has been retained, but this clause has been narrowed by the limiting term “man-made.” The most notable change is that the new definition includes only those works that “may interfere with navigation.”
The new definition accords with the general trend of the new NWPA to narrow the class of works to which the NWPA applies. However, this narrowing may not be appropriate in the definition section of the Act. Doing so leaves it unclear who is responsible for determining if a work “may interfere with navigation” and therefore, whether the Act applies. The definition could be interpreted to mean that an owner or project proponent can make this determination, a obviously inappropriate proposition which would shift the onus onto the community to prove the impacts of proposed works and defend their own right to navigation. The previous definition clearly enumerated specific works for which interference with navigation could be presumed due to the nature of the works and thus, a proponent of these works was required to consult with the Minister to assess its effect on navigation. Section 5(2) of the previous Act then appropriately empowered the Minister to determine
whether a work did “not substantially interfere with navigation” and thus exempt the work from the Act at that stage.
Recommendation: Reinstate the previous definition of “work” and the Ministerial exemption clause (s. 5(2) of the repealed NWPA).
REPEALED VERSION
1.
"work" includes
(a) any bridge, boom, dam, wharf, dock, pier, tunnel or pipe and the approaches or other works necessary or appurtenant thereto,
(b) any dumping of fill or excavation of materials from the bed of a navigable water,
(c) any telegraph or power cable or wire, or
(d) any structure, device or thing, whether similar in character to anything referred to in this definition or not, that may interfere with navigation. “work” includes
NEW AMENDED VERSION
(a) any man-made structure, device or thing, whether temporary or
permanent, that may interfere with navigation; and
(b) any dumping of fill in any navigable water, or any excavation of
materials from the bed of any navigable water, that may interfere with
navigation.
2. Section 3(2): Ministerial power to combine related works for consideration under the NWPA5
Section 3(2) is an entirely new provision aimed at streamlining the approval process by allowing the Minister to combine related works for single consideration under the NWPA. Combining works for consideration can be appropriate when there are several similar crossings over the same waterway or over waterways with substantially the same characteristics.
This provision will likely be used for approval of works at mining and forestry sites as well as for large-scale projects like the Mackenzie Gas Pipeline Project. This provision could be useful to ensure that the cumulative effect of works and cumulative value of waterways is properly considered. For example, the Minister may find that a work does not interfere with navigation at certain crossings but does substantially interfere at other crossings. In this case, the approval of the entire project should be subject to the proponent meeting the terms and conditions at those crossings with interference to navigation. Care should be taken to ensure that this provision should not be used to assume similarities not actually present and allow NWPA approvals to ignore site-specific navigation issues.
Recommendation: Support new provision as appropriate effort to streamline approval process, but recommend guidelines to ensure that site-specific navigation issues are not ignored.
REPEALED VERSION
N/A Related works
NEW AMENDED VERSION
3. (2) If the Minister considers that two or more works are related, the Minister may, for the purposes of this Part,
deem them to be a single work.
Section 4(1): NWPA amendments applicable to new construction only and all repairs, rebuilds and alterations
The previous Section 4 exempted works that were constructed under the authority of Her Majesty in right of Canada, a province and the Territories before those regions became part of the Dominion of Canada. The new Section 4.(1) maintains the exemption for these historical works as well as all works constructed before the coming into force of the amendments on March 12, 2009. The new NWPA thus applies only to the construction of works commenced after the amendments passed and the rebuilding, repairing or altering of all works, historical and current.
Recommendation: Support new provision as properly making the new Act applicable only to new works and modifications.
REPEALED VERSION
3.Extent to which inapplicable to statutory works
4. Except the provisions of this Part that relate to rebuilding, repairing or altering any lawful work, nothing in this Part applies to any work constructed under the authority of an Act of Parliament or of the legislature of the former Province of Canada, or of the legislature of any province now forming part of Canada passed before that province became a part thereof.
NEW AMENDED VERSION
Application – works under Acts or orders
4. (1) Except for this section and the provisions of this Part that relate to rebuilding, repairing or altering any lawful work, nothing in this Part applies to any work constructed under the authority of
(a) an Act of Parliament or an order of the Governor in Council, if the work was constructed before the coming into force of this subsection;
(b) an Act of the legislature of a province or an order of the lieutenant governor in council of a province, if the work was constructed before the coming into force of this subsection;
(c) an Act of the legislature of a colony of Great Britain of which at least some portion now forms part of Canada; or
(d) Her Majesty in respect of such a colony.
Section 2.1 and 4(2): Amnesty for Existing Crown Works
Sections 2.1 and 4.(2) are new sections that clarifies that the Act applies to Crown works and “grandfathers” existing works currently or previously Crown-owned works. This section was included to clarify previous confusion about whether the Act applied to Crown works and deal with the repercussions of the Supreme Court of Canada decision that it does. Prior to the 1992 Supreme Court of Canada decision, Friends of the Oldman River Society v. Canada (Minister of Transport), the Crown assumed that it was not subject to the NWPA for works it constructed. The Court held that this interpretation was incorrect and found that the NWPA was applicable to Crown-constructed works retroactively back to the Act’s inception in 1882. Since then, modifications of existing Crown works for which no NWPA approval had been sought required an approval for the existing work prior to the submission of a subsequent application for the modification being considered.
This new provision gives de facto NWPA approvals to existing Crown works which currently lack NWPA approvals (due to the Crown’s misinterpretation of the Act). In effect, the provision is intended to expedite the approval process for the modification of Crown works by providing an “amnesty” for Crown works that were constructed without consideration of NWPA requirements.
Transport Canada admits that “there are multitudes of Crown works that have never received NWPA approval”, meaning that the impact of these works on the public right to navigation has never been assessed. This “amnesty” clause will perpetuate the diminished protection of the public right to navigation. Admittedly, requiring immediate NWPA approval of the multitudes of Crown works without NWPA approval would be onerous. A reasonable compromise would be to maintain the requirement to assess Crown works for their risk to navigation whenever the need for modification of the work arises. This provision requires an assessment focused solely on the modification, removing the opportunity to assess and mitigate any damage to navigation rights caused by the original work.
Recommendation: Remove this amnesty for existing Crown works (which do not have NWPA approval) so that the Crown is required, at a
minimum, to assess the effect on navigation caused by its existing works when it decides to modify.
REPEALED VERSION 4.
N/A Binding on Her Majesty
2.1 This Act is binding on Her Majesty in right of Canada or a province.
N/A Application – works owned or transferred
NEW AMENDED VERSION
4. (2) Except for this section and the provisions of this Part that relate to rebuilding, repairing or altering any lawful
work, nothing in this Part applies to
(a) works that are owned by Her Majesty in right of Canada or a province on the day on which this subsection
comes into force; or
(b) works whose ownership was transferred before the day on which this subsection comes into force to another
person by Her Majesty in right of Canada or a province or in respect of a colony of Great Britain of which at least
some portion now forms part of Canada.
Section 5: Tiered approval for construction of works
Section 5 of the previous Act required approval under the NWPA for four named works (bridges, booms, dams and causeways) and all other works that interfered with navigation. One approval process, requiring an assessment of the impact on navigation, environmental assessment and public consultation, applied to all works. The clause contained an exemption for works, other than the four named works, that the Minister considered did not “interfere substantially with navigation.” These four named works were assumed to generally always affect navigation and thus, the Minister should review the plans before construction of these works.
The new Section 5 abolishes the “blanket” approval requirement for the four named works and creates a tiered approach to the approval process for all works. Tier 1 consists of works that “substantially interfere with navigation” and are subject to the same conditions as all works in the previous Act. Tier 2 consists of works that “interfere, other than substantially, with navigation” and are subject to the relaxed approval requirements and construction timelines (at the Minister’s discretion). Tier 3 consists of exempted works, and is no longer explicitly
outlined in Section 5, as the exemption clause has been moved to the definition of “works” at the beginning of the amended Act. In addition, a new class of exemptions has been created by Sections 12 and 13 which allows the Cabinet and Minister, respectively, to exempt classes of works and waterways. No approval under the NWPA is required for these Tier 3 “exempted” works.
The previous Section 5 recognized that the four named works generally impact navigation and placed the onus on the owner to prove its lack of impact on navigation. It also provided an exemption clause, allowing the Minister to exempt works that do not interfere substantially with navigation. The new Section 5 removes the onus on the owner and the Minister and shifts the onus onto the community to prove the impact of proposed works, works for which they will often not receive any notice of or ability to comment on (see Section 9).
Recommendation: Reinstate the four named works, in recognition that these works generally impact navigation. Reinstate the Ministerial power to exempt works that do not substantially interfere with navigation, rather than embedding this exemption in the new definition of “work.” These changes would correct the shifts in onus onto the community to prove the impact on navigation of a proposed work for which it may never been given notice of or ability to comment on.
REPEALED VERSION
Approval of Works
5. (1) No work shall be built or placed in, on, over, under, through or across any navigable water without the Minister ’s prior approval of the work, its site and the plans for it.
NEW AMENDED VERSION
Construction of works in navigable waters
5. (1) No work shall be built or placed in, on, over, under, through or across any navigable water unless
(a) the work and the site and plans thereof have been approved by
the Minister, on such terms and conditions as the Minister deems
fit, prior to commencement of construction;
(b) the construction of the work is commenced within six months
Terms and conditions – substantial interference
(2) If the Minister considers that the work would substantially interfere with navigation, the Minister may impose any terms and conditions on the approval that the Minister considers appropriate, including requiring that construction of the work be started within six months and finished within three years of the day on which approval is granted or within any other period that the Minister may fix. Terms and conditions – other interference
(3) If the Minister considers that the work would interfere, other than substantially, with navigation, the Minister may impose any terms and conditions on the approval that the Minister considers appropriate, including requiring that construction of the work be started and finished within the period fixed by the Minister.
Extension of period
(4) The Minister may, at any time, extend the period by changing the day on which construction of the work shall be started or finished. and completed within three years after the approval referred to in paragraph (a) or within such further period as the Minister may fix; and
(c) the work is built, placed and maintained in accordance with the plans, the regulations and the terms and conditions set out in the approval referred to in paragraph (a).
Exceptions
(2) Except in the case of a bridge, boom, dam or causeway, this section does not apply to any work that, in the opinion of the Minister, does not interfere substantially with navigation.
Compliance with plans, regulations, and terms and conditions
(5) The work shall be built, placed, maintained, operated, used and removed in accordance with the plans and the regulations and with the terms and conditions in the approval.
Section 5.1: Class Exemptions through Regulation or Ministerial Order
Section 5(2) of the previous Act allowed the Minister to exempt works that did “not interfere substantially with navigation” except in the four named works. Section 5.1 is a new section that allows exemptions to the Act to be defined for certain classes of works and classes of waterways. The class exemptions are established by Cabinet regulation (Section 12) or ministerial order (Section 13). These classes are subject only to the general terms and conditions specified in the regulation or ministerial order. They are exempt from the approval process, fees, environmental assessment and public notification requirements in the Act. This provision allows the works to which the Act applies to be narrowed through Cabinet regulation and ministerial order rather than the Parliamentary process.
Recommendation: Abolish the class exemptions as an unnecessary provision. The previous Act already created exemptions for works that did not interfere substantially with navigation.
REPEALED VERSION
6.
Construction of works in navigable waters
5. (1) No work shall be built or placed in, on, over, under, through or across any navigable water unless
…(
2) Except in the case of a bridge, boom, dam or causeway, this section does not apply to any work that, in the opinion of the Minister, does not interfere substantially with navigation.
NEW AMENDED VERSION
Classes of works and navigable waters
5.1 (1) Despite section 5, a work may be built or placed in, on, over, under, through or across any navigable water without meeting the requirements of that section if the work falls within a class of works, or the navigable water falls within a class of navigable waters, established by regulation or under section 13.
Compliance
(2) The work shall be built, placed, maintained, operated, used and removed in accordance with the regulations or with the terms and conditions imposed under section 13.
Non-application
(3) Sections 6 to 11.1 do not apply to works referred to in subsection(1) unless there is a contravention of subsection (2).
Section 6(4): Approval after commencement of construction
Section 6.(4) permits the Minister to approve a work after construction has commenced. The amendments add the ability to impose terms and conditions on the approval.
Recommendation: Support the amendment.
REPEALED VERSION 6.
Approval after construction commenced
6. (4) The Minister may, subject to deposit and advertisement as in the case of a proposed work, approve a work and the plans and site of the work after the commencement of its construction and the approval has the same effect as if given prior to commencement of the construction of the work.
NEW AMENDED VERSION
Approval after construction started
6. (4) The Minister may, subject to deposit and notice as in the case of a proposed work, approve a work, its site and the plans for it and impose any terms and conditions on the approval that the Minister considers appropriate after the start of its construction. The approval has the same effect as if it was given before the start of construction.
Section 7(1): Approval Fees (for construction of new works)
Section 7.(1) specifies that the fee and time frame for validity of the approval is prescribed by regulations. The previous Act imposed fees for all approvals to construct works. The amended Act fees imposes fees only on Tier 1 works (Section 5(2)) and approvals obtained after construction has commenced (Section 6(4)).
Recommendation: Support the amendment.
REPEALED VERSION
6.
Fee payable by person applying for approval
7. (1) Where a person applies for an approval referred to in paragraph 5(1)(a) or subsection 6(4), the person shall pay a fee therefor prescribed by the regulations. Approval valid for period prescribed by regulations
(2) Where the Minister has approved a work, the approval is valid for a period of time prescribed by the regulations.
Fee payable by person applying for approval
NEW AMENDED VERSION
7. (1) A person who applies for approval of a work referred to in subsection 5(2) or 6(4) shall pay the fee prescribed by the
regulations.
Approval valid for period prescribed by regulations
(2) The approval of a work under section 5 is valid for the period prescribed by the regulations.
Section 9: Tiered Public Notification Requirements
Section 9 of the previous Act specified a single set of notification requirements for all works considered under the NWPA. The proponent was required to deposit the plans and site description with the Minister and at a publicly accessible location (land titles office or registrar of deeds) and notify the public through advertisement in the Canada Gazette and two newspapers for at least one month. This process ensured that the public was notified about all proposed works that could affect navigation and allowed to comment on the plans. The amended Section 9 creates a tiered approach to public notification. Tier 1 works (substantial interference) require public notification of the work plan and site description similar to the previous Act (except that publication is required in one, rather than two, newspapers). Tier 2 works (other interference) do not require any public notification unless directed by the Minister. Tier 3 works (exempted) never require
public notification under the Act. Public notification now occurs only when the Minister determines the work substantially interferes with navigation or when the Minister exercises the discretion for works that interfere, other than substantially. In these cases, the Minister will accept written submissions only (not oral) for 30 days after public notification. The provision grants the Minister a new discretionary power to require proponents to deposit the plans for the management and operation for Tier 1 works only. The amendment creates a situation where the public will never be notified of the majority of works approved under the Act. Combined with the shift in onus to the community to prove whether a work “may” interfere with navigation (due to the new definition of “work”), this results in a situation where many impacts on navigation may occur unnoticed or at best, noticed after-the-fact. The amended Act attempts to mitigate the increased risk brought on by the relaxed approval process and reduced public notification by establishing increased enforcement powers
(Sections 4(3), 11(1)(1), 33 to 40) but these powers are after-the-fact efforts triggered only when damage to navigation rights is imminent or already occurring. Transport Canada admits that it relies on the community to identify contraventions of the Act, and the public will be able to carry out its role in the protection of navigation rights only if it is given reasonable notice of the works approved under the Act.
Recommendation: Restore public notification requirements for all Tier 1 and 2 works to ensure that the community can properly assist the Ministry in ensuring reasonable protection of the right to navigation.
REPEALED VERSION
Notice and deposit of plans
9. (1) A local authority, company or individual proposing to construct any work in navigable waters may apply to the Minister for approval by depositing the plans for its design and construction and a description of the proposed site with the Minister.
5.
NEW AMENDED VERSION
Deposit of plans and description
9. (1) A local authority, company or person proposing to construct, in navigable waters, any work for which no sufficient sanction otherwise exists may deposit the plans thereof and a description of the proposed site with the Minister, and a duplicate of each in the office of the registrar of deeds or the land titles office for the district,
county or province in which the work is proposed to be constructed, and may apply to the Minister for approval thereof.
Plans for management and operation
(2) If the Minister considers that the work would substantially interfere with navigation, the Minister may also require that the local authority, company or individual deposit the plans for the management and operation related to the work.
Deposit and notice — substantial interference
(3) If the Minister considers that the work would substantially interfere with navigation, the Minister shall direct the local authority, company or individual to
(a) deposit all plans in the local land registry or land titles office or any other place specified by the Minister; and
(b) provide notice of the proposed construction and the deposit of the plans by advertising in the Canada Gazette and in one or more newspapers that are published in or near the place where the work is to be constructed. The plans shall be deposited and notice shall be provided in the form and manner specified by the Minister.
Deposit and notice — other interference
(4) If the Minister considers that the work would interfere, other than substantially, with navigation, the Minister may direct the local authority, company or individual to deposit the plans in the local land registry or land titles office or any other place specified by the Minister, and to provide notice of the proposed construction and the deposit of the plans as the Minister considers appropriate.
(2) [Repealed, 1993, c. 41, s. 8]
(3) The local authority, company or person referred to in subsection
(1) shall give one month’s notice of the deposit of plans and application by advertisement in the Canada Gazette, and in two
newspapers published in or near the locality where the work is to be constructed.
Comments
(5) Interested persons may provide written comments to the Minister within 30 days after the publication of the last notice referred to in subsection (3) or (4).
Section 12: Cabinet power to exempt classes of works and navigable waters
Section 12 of the previous Act granted the Cabinet powers to prescribe orders deemed expedient for navigation purposes. These powers specifically included the power to prescribe application fees and the period of time that an approval is valid. The Cabinet could specify a penalty for a contravention of its orders or regulations of a fine (max $500) and/or imprisonment (max six months). The amended Section 12 greatly expands the powers of the Cabinet, adding five new prescribed powers. The most notable addition is Section 12.(1)(e) which permits the Cabinet to exempt classes or works or navigable waters for exemption from NWPA approval. This provision does not specify any criteria to guide the exercise of this power, thereby granting the Cabinet unfettered power to create exemptions to the Act at its sole discretion without notification or consultation of its stakeholders. The only limits on these Cabinet powers are imposed by the Statutory Instruments Act, which specifies that the regulation must be published in the Canada Gazette 23 days after it
is registered and is subject to Parliamentary review. Cabinet decisions are not always subject to Access to Information requests or judicial review.
Recommendation: Establish criteria to guide the exercise of this sweeping Cabinet power to exempt classes or works and waterways from application of the Act and require meaningful public consultation to ensure all potential impacts on the right to navigation are considered prior to the registration of the exemption regulation.
REPEALED VERSION
NEW AMENDED VERSION
6.
Orders and regulations by Governor in Council
12. (1) The Governor in Council may make such orders or regulations as the Governor in Council deems expedient for
navigation purposes respecting any work to which this Part applies or that is approved or the plans and site of which are approved under any Act of Parliament and, without restricting the generality of the foregoing, may make regulations
(a) prescribing the fees payable to the Minister on an application for an approval; and (b) prescribing, for the purpose of subsection 7(2), the period of time for which an approval of a work is valid.
Punishment for contravening order or regulation
(2) Any order or regulation made under this section may prescribe therein the punishment to be imposed on summary conviction for any contravention thereof but that punishment shall not exceed a Orders and regulations by Governor in Council
12. (1) The Governor in Council may make any orders or regulations that the Governor in Council deems expedient for navigation purposes respecting any work to which this Part applies or that is approved or the plans and site of which are approved under any Act of Parliament or order of the Governor in Council, and may make regulations
(a) prescribing the fees payable to the Minister on an application for an approval under this Part;
(b) respecting the grant, amendment, renewal, suspension and cancellation of approvals under this Part;
(c) prescribing the period for which an approval under this Part is valid;
(d) respecting notification requirements for a change in ownership in a work;
(e) establishing classes of works or navigable waters for the
fine of five hundred dollars or imprisonment for a term of six months or both.
Who is subject to orders or regulations
(3) A local authority, company or person constructing, owning or in possession of any work referred to in subsection (1) is subject to orders or regulations made under this section. purposes of subsection 5.1(1);
(f) respecting the placement, construction, maintenance, operation, safety, use and removal of works; and
(g) for carrying out the purposes and provisions of this Part.
Related works
(2) If the Governor in Council considers that two or more works are related, the Governor in Council may, for the purposes of subsection
(1), deem them to be a single work.
Incorporation by reference
(2.1) The regulations may incorporate any material by reference, regardless of its source, either as it exists on a particular date or as amended from time to time.
Incorporated material not a regulation
(2.2) Material does not become a regulation for the purposes of the Statutory Instruments Act because it is incorporated by reference.
Section 13: Bridges over the St. Lawrence River now under NWPA jurisdiction
Section 13 of the previous NWPA required that all bridges constructed over the St. Lawrence River receive formal Parliamentary approval. This section was repealed in the amended Act, enabling these works to be approved under the NWPA. This provision expedites the approval process for bridges over this River.
Recommendation: Support the provision as a reasonable effort to streamline projects on the St. Lawrence River.
REPEALED VERSION
7.
No approval of St. Lawrence bridges
13. No approval of the site or plans of any bridge over the St.Lawrence River shall be given under this Part.
N/A
NEW AMENDED VERSION
Section 13(1): Ministerial power to exempt classes of works and waterways
Section 13(.1) of the previous Act allowed ministerial orders to be used only when immediate action was required to deal with significant risks to safety or security. The orders were intended to be temporary, remaining in effect for a maximum of 14 days unless approved by Cabinet. These “interim orders” were to be tabled in Parliament within 15 days and published in the Canada Gazette within 23 days. The new amendments greatly expand the scope of the ministerial orders. The previous authorization to use orders to deal with significant safety and security risks has been removed. It is replaced with the ministerial power to establish classes of works or navigable waters to be exempt from NWPA approval (similar to the Cabinet power in Section 12). Like Section 12, there are no criteria to guide the exercise of this power, thereby granting an unfettered power for the Minister to exempt works at its sole discretion without notification or consultation of the
public. The only notification requirement is after-the-fact publication in the Canada Gazette, which does not provide any opportunity for public comment. Orders have no time limit unlike the previous Act. Most extraordinary is the fact that these Orders are exempt from the Statutory Instruments Act, shielding it from Parliamentary review. The Cabinet power to exempt works is not exempt from the SIA, and it is unclear how this exemption from Parliamentary review assists the Minister in carrying out the Act’s purpose to protect the public right to navigation. In effect, Section 13.(1) grants unfettered power to the Minister to exempt works from the NWPA without consultation with the public or Parliament both before and after issuance of the order.
Recommendation: Abolish this unfettered ministerial power to exempt works without guiding criteria or public and Parliamentary oversight. Class exemptions would still be possible through the Cabinet whose orders are at a minimum subject to Parliamentary review. In the alternative, establish criteria to guide the exercise of this sweeping ministerial power to exempt classes or works and waterways from application of the Act and require meaningful public consultation to ensure all potential impacts on the right to navigation are considered prior to the registration of the exemption regulation.
REPEALED VERSION
NEW AMENDED VERSION
8.
Interim orders
13.1 (1) The Minister may make an interim order that contains any provision that may be contained in a regulation made under this Part if the Minister believes that immediate action is required to deal with a significant risk, direct or indirect, to safety or security.
Cessation of effect
(2) An interim order has effect from the time that it is made but ceases to have effect on the earliest of
(a) 14 days after it is made, unless it is approved by the Governor in Council, Orders
13. (1) For the purposes of section 5.1, the Minister may, by order,
(a) establish classes of works or navigable waters; and
(b) impose any terms and conditions with respect to the placement, construction, maintenance, operation, safety, use and removal of those classes of works or works that are built or placed in, on, over, under, through or across those classes of navigable waters.
Exemption from Statutory Instruments Act
(2) An order under subsection (1)
(a) is not a statutory instrument within the meaning of the Statutory
(b) the day on which it is repealed,
(c) the day on which a regulation made under this Part, that has the same effect as the interim order, comes into force, and
(d) one year after the interim order is made or any shorter period that may be specified in the interim order.
Contravention of unpublished order
(3) No person shall be convicted of an offence consisting of a contravention of an interim order that, at the time of the alleged contravention, had not been published in the Canada Gazette unless it is proved that, at the time of the alleged contravention, the person had been notified of the interim order or reasonable steps had been taken to bring the purport of the interim order to the notice of those persons likely to be affected by it. Exemption from Statutory Instruments Act
(4) An interim order
(a) is exempt from the application of sections 3, 5 and 11 of the Statutory Instruments Act; and
(b) shall be published in the Canada Gazette within 23 days after it is made.
Deeming
(5) For the purpose of any provision of this Part other than this section, any reference to regulations made under this Act is
deemed to include interim orders, and any reference to a regulation made under a specified provision of this Act is deemed to include a reference to the portion of an interim order containing any provision that may be contained in a regulation made under the specified provision.
Tabling of order
(6) A copy of each interim order must be tabled in each House of Parliament within 15 days after it is made.
House not sitting
(7) In order to comply with subsection (6), the interim order may besent to the Clerk of the House if the House is not sitting.
Instruments Act; and
(b) shall be published in the Canada Gazette within 23 days after the day on which it is made.
Incorporation by reference
(3) An order may incorporate any material by reference, regardless of its source, either as it exists on a particular date or as amended from time to time.
9. Sections 4(3), 6(1) and 11.1 Ministerial power to amend approvals
Section 6(1) grants the Minister the power to order the removal or alteration, or to stop construction of unauthorized works and works constructed or maintained contrary to the terms and conditions of approval. This provision exists in both the previous and amended Act. New provisions, Sections 4(3) [historical and existing Crown works] and 11(1)(1) [works with NWPA approval] create powers for the Ministerto revoke NWPA approval even if the work is being constructed and maintained according to the approved plans. These sections allow the Minister to order the alteration or removal of approved works if satisfied that the work has become a danger to or interference with navigation due to time and changing navigational conditions. The Minister may suspend or cancel an approval if it was obtained by fraudulent means or the owner/work is in contravention of the Act. The Minister may also issue these orders “in the public interest.”
This is a broad ministerial power that forms part of the new increased “after-the-fact” enforcement powers created by the amendments. These powers appear to be intended to mitigate the increased risks undertaken due to the more relaxed approval process and reduced public consultation. These powers are reactive rather than preventative, allowing action only after the work “has become” a danger or interference, hence only once the damage is done. This provision provides poor protection to the right to navigation, acting contrary to the purpose of the legislation. Resources invested into a reactive enforcement effort may be better allocated to reinstating the original approval process with its increased requirements and public consultation. Alternatively, this section could be improved by triggering these enforcement powers when the work may, rather than has, become a danger or interference to ensure it has some prescriptive powers.
Recommendation: Replace “may” for “have” in the provision to allow more timely protection of navigation rights.
REPEALED VERSION
N/A
NEW AMENDED VERSION
Ministerial order (for historical works and Crown works without previous NWPA
approval)
4. (3) The Minister may order an owner of a work referred to in subsection (1)or (2) to alter or remove the work or to comply with any terms and conditions that the Minister, as he or she considers appropriate, may impose if the
Minister is satisfied that
(a) the work has become a danger to or an interference with navigation by reason of the passage of time and changing conditions in navigation of the navigable waters concerned; or
(b) the alteration or removal or the terms and conditions are in the public interest.
Minister’s power
(4) If the owner of the work fails to comply with an order given under subsection (3), the Minister may remove and destroy the work and sell, give away or otherwise dispose of the materials contained in the work.
Costs of removal, destruction or disposal
(5) If the Minister removes, destroys or disposes of a work under subsection
(4), the costs of and incidental to the removal, destruction or disposal, after deducting any sum that may be realized by sale or otherwise, are recoverable with costs in the name of Her Majesty in right of Canada from the owner.
Ministerial orders respecting unauthorized works
6. (1) Where any work to which this Part applies is built or placed without having been approved by the Minister, is
built or placed on a site not approved by the Minister, is not built or placed in accordance with plans so approved
or, having been so built or placed, is not maintained in accordance with those plans the Minister may
(a) order the owner of the work to remove or alter the work;
(b) where the owner of the work fails forthwith to comply with an order made pursuant to paragraph (a),
remove and destroy the work and sell, give away or otherwise dispose of the materials contained in the
work; and
(c) order any person to refrain from proceeding with the construction of the work where, in the opinion of the
Minister, the work interferes or would interfere with navigation or is being constructed contrary to this Act.
Ministerial orders respecting unauthorized works
6. (1) If any work to which this Part applies is built or placed without having been approved under this Act, is built or placed on a site not approved under this Act, is not built or placed in accordance with the approved plans and terms
and conditions and with the regulations or, having been built or placed as approved, is not maintained, operated, used or removed in accordance with those plans, those terms and conditions and the regulations, the Minister may
(a) order the owner of the work to remove or alter the work;
(b) where the owner of the work fails forthwith to comply with an order made pursuant to paragraph (a), remove and destroy the work and sell, give away or otherwise dispose of the materials contained in the work; and
(c) order any person to refrain from proceeding with the construction of the work where, in the opinion of the Minister, the work interferes or would interfere with navigation or is being constructed contrary to this Act.
N/A Amendment of approval (for works with NWPA approval)
11.1 (1) Subject to subsection (3), the Minister may amend an approval of a work if he or she is satisfied that
(a) the work has become a danger to or an interference with navigation by reason of the passage of time and changing conditions in navigation of the navigable waters concerned; or
(b) the amendment is in the public interest.
Suspension or cancellation
(2) Subject to subsection (3), the Minister may suspend or cancel an approval
if he or she is satisfied that
(a) the work is not being or has not been built, placed, maintained, operated, used or removed in accordance with the plans, the regulations or with any terms and conditions in the approval;
(b) the approval was obtained by a fraudulent or improper means or a misrepresentation of a material fact;
(c) the owner of the work has not paid a fine imposed under this Act;
(d) the owner of the work has contravened a provision of this Act or the regulations; or
(e) the suspension or cancellation is in the public interest, including that it is warranted by the record of compliance of the owner or of a principal of the owner under this Act.
Notice
(3) Before amending, suspending or cancelling an approval of a work, the Minister shall give the owner 30 days’ notice setting out the grounds on which the Minister relies for the amendment, suspension or cancellation. Not a statutory instrument
11.2 For greater certainty, an order given under subsection 4(3) or paragraph 6(1)(a) or (c) is not a statutory instrument within the meaning of the Statutory Instruments Act.
Sections 33-39: New Inspection and Enforcement Powers
The previous Act did not contain any inspection powers. The amended Act creates new expansive enforcement powers. The Minister may designate officials to administer and enforce the Act. The Act grants the designation official sweeping powers to investigate compliance with the Act including powers to enter places, direct persons to act or cease to act, copy, record and examine records and data. The official can obtain a warrant to enter a private residence when entry has been previously refused. The Act creates a legal duty for persons to assist the official in carrying out the investigation and creates an offence of providing false or misleading information or otherwise hindering the investigation. The designated official can obtain an injunction to order a person to act or refrain from acting when it is suspected that the person is about to or likely to commit an offence under the Act.
These enforcement powers are desirable in principle but combined with the less stringent approval requirements they represent an afterthe-fact approach to the protection of the right to navigation. The Act as a whole sets up a regime where works are approved with minimal assessment. The reduced scrutiny is supposedly mitigated by the increased enforcement powers. First, it is not clear that these extensive investigative powers are in accordance with Charter principles related to search and seizure. The effectiveness of this enforcement regime will depend on its implementation. To be effective, the Ministry would have to create a national enforcement team tasked with reviewing the ongoing compliance of works being constructed and operating pursuant to NWPA approvals. However, this would be a resource-intensive
task force that would not accord with Transport Canada’s efforts to streamline the NWPA program. In fact, Transport Canada has confirmed that it does not plan to create a new enforcement task force but will continue to rely on reports from the public and their own navigation officers. The Ministry depends on community reporting to identify contraventions, placing another onus on the community to “police” NWPA violations and protect their own right to navigation. This onus is onerous in light of the fact that the new amendments ensure that the majority of works will proceed without public notification. Thus, the community will not be aware of the projects that require inspection.
Recommendation: Support the new enforcement provisions but to ensure that these powers are meaningful, reinstate the public notification requirements of the previous Act to ensure the public is aware of works requiring monitoring. Alternatively, recommend the establishment of a national enforcement team tasked with monitoring compliance.
REPEALED VERSION
N/A
NEW AMENDED VERSION
DESIGNATION
33. For the purposes of the administration and enforcement of this Act and any regulation or order, the Minister
may designate persons or classes of persons to exercise powers in relation to any matter referred to in the
designation.
10.
N/A POWERS
Authority to enter
34. (1) A person who is designated to verify compliance or prevent non-compliance with this Act and any
regulation or order may, for that purpose, at any reasonable time, enter a work, vessel or swing or draw bridge, or
enter any other place in which they have reasonable grounds to believe the following items are located:
(a) a work or anything related to a work;
(b) a wreck, vessel, part of a vessel or other thing that obstructs or impedes navigation or renders it more difficult
or dangerous, or that is likely to do so;
(c) a ferry cable or swing or draw bridge, or anything related to one.
Certification
(2) On entering a place, the designated person shall, on request, produce to the person in charge of the place a
certification in the form established by the Minister attesting to the designation.
Powers
(3) The designated person may, for the purposes referred to in subsection (1), (a) examine anything that is found
in the place;
(b) remove any document or other thing from the place for examination or, in the case of a document, copying;
(c) direct any person to put into operation or cease operating any work, vessel or other conveyance, machinery or
equipment in the place;
(d) prohibit or limit access to the place for as long as specified;
(e) take photographs and make video recordings and sketches;
(f) use or cause to be used any computer system or data processing system at the place to examine any data
contained in, or available to, the system;
(g) reproduce any record, or cause it to be reproduced from the data, in the form of a printout or other intelligible
output and remove the printout or other output for examination or copying; and
(h) use or cause to be used any copying equipment at the place to make copies of any books, records, electronic
data or other documents.
Entry — private property
(4) The designated person, in carrying out their functions under this section, and a person accompanying them
may enter on and pass through or over private property without being liable for doing so.
Duty to assist
35. The owner or person who is in charge of a place that is entered under subsection 34(1) and every person who
is in the place shall
(a) give a designated person who is carrying out their functions under section 34 all reasonable assistance; and
(b) provide them with any information that they may reasonably require.
Warrant for dwelling-house
36. (1) If any place referred to in subsection 34(1) is a dwelling-house, the designated person may not enter it
without the consent of the occupant except under the authority of a warrant issued under subsection (2).
Authority to issue warrant
(2) On ex parte application, a justice of the peace may issue a warrant authorizing the person who is named in it to
enter a dwelling house, subject to any conditions that may be specified in the warrant, if the justice is satisfied by
information on oath that
(a) the dwelling-house is a place referred to in subsection 34(1);
(b) entry to the dwelling-house is necessary for the purpose of verifying compliance or preventing non-compliance
with the Act and any regulation or order; and
(c) entry to the dwelling-house was refused by the occupant or there are reasonable grounds to believe that entry
will be refused or consent to entry cannot be obtained from the occupant.
N/A PROHIBITIONS
False statements or information
37. (1) No person shall knowingly, orally or in writing, make a false or misleading statement or provide false or
misleading information, in connection with any matter under this Act, to a designated person who is carrying out
their functions under section 34.
Obstruction
(2) No person shall knowingly obstruct or hinder a designated person who is carrying out their functions under
section 34.
N/A INJUNCTION
Injunction
38. (1) If, on the application of the Minister, it appears to a court of competent jurisdiction that a person has done,
is about to do or is likely to do any act constituting or directed toward the commission of an offence under this Act,
the court may issue an injunction ordering a person named in the application
(a) to refrain from doing an act that, in the opinion of the court, may constitute or be directed toward the
commission of the offence; or
(b) to do an act that, in the opinion of the court, may prevent the commission of the offence.
Notice
(2) No injunction may be issued under subsection (1) unless 48 hours’ notice is served on the party or parties
named in the application or the urgency of the situation is such that service would not be in the public interest.
N/A IMMUNITY
Not personally liable
39. (1) Servants of the Crown, as those terms are defined in section 2 of the Crown Liability and Proceedings Act,
are not personally liable for anything they do or omit to do in good faith under this Act.
Crown not relieved
(2) Subsection (1) does not, by reason of section 10 of the Crown Liability and Proceedings Act, relieve the Crown
of liability for a tort or extracontractual civil liability to which the Crown would otherwise be subject.
Section 40: Increased fines for contravention of the Act
The previous Act contained several provisions that established specific offences through contravention of the Act. Each offence triggered penalties ranging from a fine of $500 to $5000, and imprisonment of up to six months.
The amended Act consolidates the “Offences and Punishment” provisions into one section and increases the maximum fine to $50,000.
The previous fines were considered inadequate to deter contravention of the Act in light of the overall scope of most projects constructed under the Act.
Recommendation: Support the increased fines as a more realistic deterrent to contraventions to the Act.
REPEALED VERSION
11.
Offence and punishment (orders respecting unauthorized works)
6.(2) Any owner or person who fails to comply with an order given to that owner or person pursuant to paragraph (1)(a) or (c) is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars.
Punishment for contravening order or regulation (Cabinet order or regulation)
NEW AMENDED VERSION
12. (2) Any order or regulation made under this section may prescribe therein the punishment to be imposed on summary
conviction for any contravention thereof but that punishment shall not exceed a fine of five hundred dollars or imprisonment for a term of six months or both.
Failure to comply with order (removal of obstacle or obstruction)
19. (2) Where a person to whom an order is given pursuant to subsection (1) fails forthwith to comply with the order,
(a) the person is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars; and
(b) the Minister may order the vessel to be removed to such place as the Minister deems fit, and the costs of removal of the vessel shall be recoverable against the person as a debt due to Her Majesty.
OFFENCES AND PUNISHMENT
Offence
40. (1) Every person is guilty of an offence and is liable on summary conviction to imprisonment for a term of not more than six months or to a fine of not more than $50,000, or to both, if the person contravenes
(a) an order given under subsection 4(3), paragraph 6(1)(a) or (c) or subsection 19(1);
(b) an interim order made under section 13.1 or 32;
(c) an order or regulation made under section 12 or 30; or
(d) subsection 15(1) or section 21, 22, 35 or subsection 37(1) or (2).
Vessel liable for fine
(2) If any materials referred to in section 22 are thrown from or deposited by a vessel and a conviction is obtained for that activity, the vessel is liable for any fine that is imposed and may be detained by any port warden or the chief officer of customs at any port until the fine is paid.
Continuing offence
(3) If the offence under subsection (1) is committed or continued on more than one day, the person who commits it is liable to be convicted for a separate offence for each day on which it is committed or continued.
Failure to give notice or to signal or light
26. Every person required by this Part to give notice to the Minister or to the chief officer of customs at any port of any obstruction or obstacle to navigation, or to place and maintain a sufficient signal orlight to indicate the position of the obstruction or obstacle, who failsto give that notice or to place or maintain that signal or light is guilty of an offence.
Contravention of section 21 (throwing or deposit of sawdust)
27. Any person who contravenes section 21 is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars for each offence.
Fine (throwing or deposit of stone)
28. Any person who contravenes section 22 is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars and, in any case where any materials referred to in that section are thrown from or deposited by a vessel and a conviction is obtained therefor, the vessel is liable for the fine andmay be detained by any port warden or the chief officer of customs at any port until the fine is paid.
Punishment for contravention of regulation (regulation of ferry cables and swing or draw bridges)
31. Any regulation made under this Part may prescribe the punishment to be imposed on summary conviction for any
contravention thereof but that punishment shall not exceed a fine of five hundred dollars or imprisonment for a term of six months or both.
Section 41: Five-Year Review of Act
The amended Act features a new provision requiring a 5-year review of the amendments. Transport Canada states that the review enables the correction of any deficiencies identified through the implementation of the amendments. It specifically notes that the “ongoing need of the use of these Orders would be assessed”, implicitly admitting the extraordinary nature of the use of the ministerial orders to create exemptions to the Act. The Department states that additional changes could be made to the Act to more effectively manage the increasing shared use of Canada’s waterways. Several stakeholders that were not consulted in the drafting of the amendments have also expressed the need for changes to the Act to better balance the right to navigation with efficiency concerns. It is clear that this Act is in transition and requires additional work to achieve the proper balance between the right to navigation and the need for efficiency. The five-year review clause is a beneficial provision allowing for public consultation about the Act in general in five years. However, it is not
an adequate replacement for the meaningful public consultation throughout the approval process for specific works that has been repealed in the amendments.
Recommendation: Support the five-year review clause, but ensure that other means of public consultation are reestablished.
REPEALED VERSION of the NWPA 12.
N/A
NEW AMENDED VERSION of the NWPA
Review of Act
41. (1) A review of the provisions and the operation of this Act must be completed by the Minister before the end of the fifth year after the day on which this section comes into force.
Tabling of report
(2) The Minister shall cause a report of the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the report has been completed.
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