A fiscal cliff, and a debt ceiling - what do you get when...

The debt ceiling is 16.4 Trillion Dollars and it has been reached for all intents and purposes. The fiscal cliff's tax increases and spending cuts kick in on December 31st. Fasten your seat belts.

The great divide: Idiots for Responsible Gun Ownership!

Capitalism Ownership Labour and Marxism

I'd say this fellow has a good handle on the matter: More about this video:

Lawrence Greenspon tells it like it is - The Don Cherry of the justice system.

Lawrence Greenspon, who represents Khawaja, said he was "not happy with the result" of his client's court challenge. "I have faith in the courts that they can distinguish between who is innocent and who is not," Greenspon told reporters outside the court in Ottawa after the ruling. "I don't think we can say with equal confidence that investigations and prosecutions will not involve and will not be based on political, religious or ideological beliefs in this country." from CBC http://www.cbc.ca/news/canada/story/2012/12/14/supreme-court-terrorism-ruling-khawaja.html

HSBC to pay $1.9 Billion USD for MONEY LAUNDERING!!!!!

From CBC news item

 

"'We accept responsibility'

"We accept responsibility for our past mistakes," said HSBC Chief Executive Stuart Gulliver. "We have said we are profoundly sorry for them, and we do so again."
Some legal experts slammed the deal for being too soft on the bank and the individuals responsible for the alleged money-laundering.
Jimmy Gurule, a former assistant U.S. Attorney General and currently a law professor at the University of Notre Dame, said the settlement made a "mockery" of the criminal justice system.
"The message sent by the U.S. Department of Justice is that if you are going to engage in large-scale money laundering for Mexican drug cartels, make sure and do it within the scope of your employment working for a bank because you won't be prosecuted regardless of the egregious nature of your criminal conduct," he said.
A U.S. law enforcement official said the sum HSBC was paying would include $1.25 billion in forfeiture — the largest ever in a case involving a bank — and $655 million in civil penalties.
Under what is known as a deferred prosecution agreement, the financial institution will be accused of violating the Bank Secrecy Act and the Trading With the Enemy Act, the official said. The source spoke only on condition of anonymity because officials were not authorized to speak about the matter on the record."

Commentary


What a load of crap.  If you steal a loaf of bread in california - you end up in jail.

The magnitude of these felonious actions boggles the imagination.

Max Keiser is correct in his assertions and histrionics.

BIll C-45 - a shambles of legislation deep sixes navigational rights for good

Elizabeth May tells it like it is:



The bulk of my amendments deal with the Navigable Waters Protection Act. The Conservatives have taken three runs at it through three different omnibus bills, the first being in 2009. The objective definition of what is “navigable” was changed to a discretionary definition wherein “navigable” would mean whatever the Minister of Transport says that it means.
In Bill C-38, just this past spring, the Conservatives took another run at the Navigable Waters Protection Act with the specific exclusion of pipelines as works or undertakings. Pipelines are no longer in the Navigable Waters Protection Act. These new amendments are certainly not about pipelines because the Conservatives took care of that in Bill C-38.
What this does is it takes an act that we have had since 1882 that directly comes from the Constitution of this country, that being the federal responsibility for navigation. The Navigable Waters Protection Act, which was brought in by Sir John A. Macdonald, has protected the rights of Canadians to put a canoe or kayak in any body of water and paddle from there to wherever they want to go. As Canadians, we have a right to navigation. This is now being superseded with the false story that there is somehow a burdensome regulatory amount of red tape that offends people in municipalities. Therefore, we need to blow apart the Navigable Waters Protection Act to say that a body of water is only navigable if it can be found in the schedule at the back of the act. Ironically, the 99.5% of Canadian waters that are not listed there are not ones near municipalities, cottages and people who want to build wharfs, but are in our wilderness areas where, without the Navigable Waters Protection Act, nothing stands in the way of obstructions to navigations for Canadians.
The government will tell us that is all right because Canadians have a common law right. If people have a couple of hundred thousand dollars and are prepared to go to the Supreme Court of Canada to defend their right to use a waterway that is not listed, they can do that. However, this is an egregious abdication of responsibility for a federal head of power that no other level of government has the right to step up and fill the void.

Solarized E-trike

Taken from: http://www.netnewsledger.com/2012/06/27/solar-simplification-its-finest/
http://netnewsledger.com/wp-content/uploads/2012/06/SolarTrike.jpg

(parenthetical note: the design of this cart seems poor: how about this:

 e-trike model - Dragon

price was around $2800-tax included.

Stock Power Requirements 4-12v @ 20amphrs batteries in series to give a 48v system.

Retrofit:  3-50watt panels (each panel, 2.9amps @ 17v and weight around 12 lbs

Additional Material and  parts, aluminum angle iron, 5/8 aluminum rod, nuts and bolts

 tools for the build,  a cordless drill, files, hacksaw, hammer, punch.

Total assembly time was about five days.
Two days for bolting the three 50 watt panels together, and using the angle iron for added strength and rigidity.
Three days to build the mounting system to secure the panels to the deck of the e-trike.

The aluminum rod was used to attach the panels to the mounting brackets on the deck of the trike and allow the panels to be orientated to the sun when needed.


Total cost of the project, $3600.


extended the range from 50km (using only the batteries), to an estimated range of 200-300km on a sunny day and 75-100kms on really cloudy day.

http://netnewsledger.com/wp-content/uploads/2012/06/Rick_Panels.jpg


associated links;

http://www.electric-bikes.com/trikes/trikes.html

The owner has plans:

A tow behind solarized trailer that can be used with a solarized e-trike, can easily be adapted to use as a mobile trailer to live in..

1. line the outside with cloroplast and line the inside with r5 ridgid insulation. use it to sleep in at night, body heat will keep u warm at night even in -30c, 
2. resisitive and passive solar gain from daylight for extra heat or energy to produce h2 for cooking.power to keep the e-devices top up.
3. collect the rain water, use the sunlight to sterilize it for consumption.

says the owner 

"use it as a home for a yr, $700 per month rent or morgage savings x 12months =$8400 per yr.
the solarized e-trike and solarized trailer for $5k, now gives a return of $20k+ per yr and growing.
that $5k investment now supplies transportation, electricity and a place to sleep and stay warm and dry. park it by a lake, u get to fish. park it by ur place of employment, pump ur wages into saving for a yr, use that $20k saving to buy a home."





Other solar powered electric bikes:
http://www.outdoorgearlab.com/a/11083/How-To-Make-A-Solar-Powered-Electric-Bike


The electric bicycle's efficiency translates into about 1000 miles per gallon gas, not bad at today's gas prices.  Electric bikes are fairly powerful and therefore need to store about 200-500 watt of energy in their batteries to travel the desirable range.
Some companies now offer roll-up solar panels from 25 to 75 watts of output. Three of those solar panels in series will provided the now common 36 volts used in most electric bicycles and could recharge your e-bike while at work. The solar panels roll up small enough to place on the rear rack including the charge converter. Non roll-up panels are more efficient but are not that easily transported, they might require to be installed at home or/and work.

There are prototype bicycle trailers like the Bob motor trailer which have an electric motor, batteries and fold-out solar panels - all mounted on the trailer that can be un-hooked from the bicycle in 5 seconds if not needed.
It is usually recommended to use batteries larger than needed for one trip, it allows you to ride on some of yesterday's sunlight in case you need to run home early or the sun has not been out at all. Most solar panels now do not need direct sunlight to work but will not quite run at 100% capacity on a cloudy day.(from http://www.nycewheels.com/solar-powered-electric-bike.html)

Photovoltaic panels are built in to the wheels, 

Solar charging station

Japanese 72 km/hr solarized ebike






Front and Back

250W motor






Link: http://www.solarbike.com.au

Now check out this bad boy from Stealth




And these power bikes


http://hi-powercycles.com/





Here is an oddity: ultra small wheels - incredible power





For more on this see:http://www.thekpv.com/




Bob Trailer accessory

College/University Degrees, Their Cost and their Worth...

Oh dear. We're educated but apparently that doesn't guarantee a job.

Our leaders are intelligent and educated but apparently corrupt.  What is the alternative, for them to be stupid and ignorant but clean as a whistle? What kind of world do we have when it takes 25 to 30 years to prepare an adult to function in the world? (a quarter of the expected lifespan) and once they become educated, they are under employed.

The system is broken folks.

Where and what is GAZA?

Honestly I don't know why but I think this business about GAZA is important.  It has to do with the way Israel was created in the first place. There is and ebb and flow in the tide of human affairs. There are lessons from the past that if not learned may lead to the same mistakes.

What can be learned from the GAZA affair?


Palestinian/Israeli conflict  (with thanks to WiKI Paedia)

Today Hamas launches rockets then Israel retaliates with bombing of Gaza strip.  Would any other country on earth tolerate rockets being fired on its civilian population. What other country would tolerate an embargo of its borders?

The root cause of anger in the region is the continued occupation of GAZA which started in 1949 with the establishment of the Israeli state within Palestine.  Military history shows that people embark on war without being certain about the outcome. Political leaders begin with goals they want to achieve, and may well have high confidence that they can be achieved by force. Hamas' goal of "ending occupation" means by definition the complete destruction of Israel as a separate country. Islamic terrorists do not believe in long term peace with non believers.

The Israelis know about oppression too but so do the Palestinians. In Gaza, the world's largest open-air prison, a million and a half people try to survive.  In the most densely populated area of the world, Gaza's Palestinians are constantly subject to random searches. West Bank Palestinians have lived for 45 years under Israeli military occupation. 4 million others live in squalid refugee camps.  More than 1.4 million Palestinian men, women and children are 'trapped' in the Gaza Strip. Israel's blockade restricts what can come into the Gaza strip. Oppressed people will fight, dig tunnels and shoot home-made rockets.  A recent report by Save the Children and Medical Aid for Palestinians found that,anemia is widespread, affecting over two-thirds of infants, 58.6 percent of schoolchildren, and over a third of pregnant mothers.

The unstoppable truth is the during WWII many millions of Jewish people were killed by the Nazis as part of the Holocaust. Its likely the allies knew about this.  At the end of the conflict the victors discussed where the new jewish state would be - not North America, not Europe. They settled on Palestine because the British ruled Palestine (1923–1948) through Allied and associated powers after the First World War. Towards the end of the 1948 Arab-Israeli War, the All-Palestine government was proclaimed in the Egyptian occupied Gaza City recognized by six of the then seven members of the Arab League: Egypt, Syria, Lebanon, Iraq, Saudi Arabia, and Yemen, but not by Transjordan.  Further it was not recognised by any country outside the Arab League.

The Israel-Egypt Armistice Agreement of 24 February 1949 established the present boundary between the Gaza Strip and Israel. Both sides declared that the boundary was not an international border. The southern border of Gaza with Egypt continued to be the international border which had been drawn in 1906 between the Ottoman Empire and the British Empire.

The influx of Palestinian refugees who fled to the Gaza Strip or Egypt were issued All-Palestine passports. The All-Palestine Government disolved in 1959, and Gaza was occupied by Egypt until 1967. Gaza was administered through a military governor.

http://upload.wikimedia.org/wikipedia/commons/thumb/9/93/Gaza_Strip_map2.svg/300px-Gaza_Strip_map2.svg.png

Israel controlled the Gaza Strip beginning in June 1967, after the Six-Day War. Israeli "occupation" refers to land Israel gained after the 1967 war. To Hamas "occupation" means that all of Israel is occupied Arab land.  During the period of Israeli control, Israel created a settlement bloc, Gush Katif, in the southwest corner of the Strip near Rafah and the Egyptian border. In total Israel created 21 settlements in the Gaza Strip, comprising 20% of the total territory. These settlements served Israel's security concerns.

In March 1979 Israel and Egypt signed the Israel-Egypt Peace Treaty. The treaty provided for the withdrawal by Israel of its armed forces and civilians from the Sinai Peninsula, which Israel had captured during the Six-Day War. Egypt renounced all territorial claims to territory north of the international border.

In May 1994, following the Palestinian-Israeli agreements known as the Oslo Accords, a phased transfer of governmental authority to the Palestinians took place. Much of the Strip (except for the settlement blocs and military areas) came under Palestinian control. The Israeli forces left Gaza City and other urban areas, leaving the new Palestinian Authority to administer and police those areas. The Palestinian Authority, led by Yasser Arafat, chose Gaza City as its first provincial headquarters. In September 1995, Israel and the PLO signed a second peace agreement, extending the Palestinian Authority to most West Bank towns. The agreement also established an elected 88-member Palestinian National Council, which held its inaugural session in Gaza in March 1996.


Between 1994 and 1996, Israel built the Israeli Gaza Strip barrier to improve security in Israel.  Between December 2000 and June 2001, the barrier between Gaza and Israel was reconstructed. A barrier on the Gaza Strip-Egypt border was constructed starting in 2004. The main crossing points are the northern Erez Crossing into Israel and the southern Rafah Crossing into Egypt. The eastern Karni Crossing used for cargo, closed down in 2011.Israel controls the Gaza Strip's northern borders, as well as its territorial waters and airspace. Egypt controls Gaza Strip's southern border, under an agreement between it and Israel.]

In February 2005, the Israeli government voted to implement a unilateral disengagement plan from the Gaza Strip. The plan began to be implemented on 15 August 2005, and was completed on 12 September 2005. Under the plan, all Israeli settlements in the Gaza Strip (and four in the West Bank) and the joint Israeli-Palestinian Erez Industrial Zone were dismantled with the removal of all 9,000 Israeli settlers (most of them in the Gush Katif settlement area in the Strip's southwest). On 12 September 2005 the Israeli cabinet formally declared an end to Israeli military occupation of the Gaza Strip. Israel also withdrew from the Philadelphi Route, which is a narrow strip adjacent to the Strip's border with Egypt, after Egypt's agreement to secure its side of the border. Under the Oslo Accords the Philadelphi Route was to remain under Israeli control to prevent the smuggling of weapons and people across the border with Egypt. With Egypt agreeing to patrol its side of the border, it was hoped that the objective would be achieved. The Rafah crossing between Egypt and Gaza was monitored by the Israeli army through special surveillance cameras.

The Israel Defence Forces left the Gaza Strip on 1 September 2005 as part of Israel's unilateral disengagement plan, and all Israeli citizens were evicted from the area. An 'Agreement on Movement and Access' between Israel and the Palestinian Authority was brokered by Condoleezza Rice in November 2005 to improve Palestinian freedom of movement and economic activity in the Gaza Strip. Under its terms, the Rafah crossing with Egypt was to be reopened, with transits monitored by the Palestinian National Authority and the European Union. Only people with Palestinian ID, or foreign nationals, by exception, in certain categories, subject to Israeli oversight, were permitted to cross in and out. All goods, vehicles and trucks to and from Egypt passed through the Kerem Shalom Crossing, under Israeli supervision. Goods were also permitted transit at the Karni crossing in the north.

Israel is the occupying power of the Gaza Strip as Israel controls Gaza's airspace and territorial waters, and does not allow the movement of goods in or out of Gaza by air or sea (only by land). The border crossing into Egypt is not controlled by Israel; like Israel, Egypt has alternately restricted or allowed goods and people to cross that border.


In 2006, the Palestinians held elections. Fatah won in the West Bank and Hamas won in Gaza. Fatah staged an attempted coup inside of Gaza;   During the next 6 months Hamas and Fatah battled throughout Gaza as Hamas fighters took over all security forces and government offices. Hamas rejected the notion of a 2 state solution. The Hamas Charter (1988) states that "Dying for this jihad is expected and desirable for all citizens, they will be rewarded later.  In 2010 representative Usamah Hamdan referred to this charter, the two state solution and recognition of Israel.

http://therealnews.com/t2/index.php?option=com_content&task=view&id=33&Itemid=74&jumival=565

The Israelis controlled the Egyptian border crossing into Gaza when Mubarek was in power.  The Muslim brotherhood has come to power in Egypt, easing the embargo of the Egyptian border but the blockade of the sea approaches by Israel is now gong into its 7th year.

Article 33 of the Fourth Geneva Convention of 1949 states that "No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited."

By targeting Ahmed al-Jabari, leader of the al-Qassam Brigade, Israel may have sabotaged Egyptian efforts to conclude a truce between all Palestinian factions and the Israelis. Israel may have actually provoked this conflict by arbitrarily murdering this Hamas official.

New York Times article on Hamas rockets:

www.nytimes.com/2012/11/18/world/middleeast/arms-with-long-reach-bolster-hamas.html?_r=0

Iran is involved in this war. Iranian rockets are used by Hamas. The Iranian-built Fajr series of rockets are threatening Tel Aviv and Jerusalem for the first time since the 1991 Gulf war.

Arab peace plan of 2002 http://news.bbc.co.uk/2/hi/middle_east/1844214.stm has been rejected by the Israeli and US governments.

http://english.aljazeera.net/palestinepapers/

I think Hell just froze over....

http://www.cbc.ca/news/politics/story/2012/11/19/pol-peter-kent-weather-climate.html Climate change a 'real and present danger,' Kent says Next UN Climate Change Conference set for Doha, Qatar on Nov. 26

Apparently Canada needs more jets...

about $65 Billion worth.

You don't need a weatherman to know which way the wind is blowing.

What do you have to do to get an environmental assessment?

November 7 Committee proceedings

Helen Cutts Vice-President, Policy Development Sector, Canadian Environmental Assessment Agency

Thank you very much.

My name is Helen Cutts. I'm the vice-president of policy development at the Canadian Environmental Assessment Agency. It's my pleasure to be with you this afternoon. My opening remarks will not take 10 minutes. That will give us more time for questions.

Division 21 in part 4 of the budget implementation act makes a minor technical amendment to the Canadian Environmental Assessment Act, 2012, or CEAA 2012, as it's known in the short form.

In order to provide some context for members of the committee with respect to the amendments proposed by Bill C-45, I will briefly describe the main features of the CEAA 2012.

This new act was brought into force in July shortly after Bill C-38 received royal assent.

These recent changes to federal environmental assessment are part of the responsible resource development plan. The objectives of this plan are to provide for more predictable and timely reviews, to reduce duplication for project reviews, to strengthen environmental protection, and to enhance consultations with aboriginal groups.

CEAA 2012 focuses on major projects. “Designated projects” is the term used in the legislation. Designated projects are identified in the project list regulations. The Minister of the Environment may also require the environmental assessment of a project not on the list. This scheme replaces the “all in unless excluded” approach of the former act.

Responsibility for environmental assessment has also been consolidated with the Canadian Environmental Assessment Agency, the Canadian Nuclear Safety Commission and the National Energy Board. This replaces an approach that saw the act implemented by 40 to 50 federal authorities each year.

There are additional mechanisms for federal-provincial cooperation. A provincial environmental assessment may substitute for the federal process. At the end of the environmental assessment, the Minister of the Environment makes a decision, informed by the provincial report. Before approving substitution, the minister must be satisfied that the core requirements of CEAA 2012 will be met.

The Governor in Council may also declare a provincial environmental assessment to be equivalent, exempting the designated project from application of the act. The conditions for substitution must be met in this case as well.

The Governor in Council must also be satisfied that the province will make a determination as to whether the designated project is likely to cause significant adverse environmental effects. It will ensure implementation of mitigation measures and a follow-up program.

There are now legislative timelines for environmental assessments: 365 days for an assessment by our agency; 24 months for an assessment by a review panel.

The minister may extend timelines by three months. Additional extensions may be granted by the Governor in Council. There is authority for regional environmental assessments that move beyond a project-specific focus. These are intended to assist with the assessment of cumulative environmental effects.

Finally, unlike the former act, CEAA 2012 includes enforcement provisions.

The amendments proposed by Bill C-45 are intended to address minor inconsistencies in the text of CEAA 2012 that have come to our attention over the past four months of implementation.

Clauses 425 to 427, as well as clauses 429 and 431, are intended to ensure concordance between the French and English versions of the act.

Clause 428 corrects an oversight with respect to conditions that can be put in a decision statement. At the end of an environmental assessment, a decision statement is provided to the proponent of a project. This statement sets out the conclusion as to whether the project is likely to cause significant adverse environmental effects. It also sets out conditions that are binding on the proponent; these are mitigation measures and requirements for a follow-up program.

The amendment proposes broader language with respect to the conditions to ensure that a decision statement can include administrative requirements such as reporting on the implementation of mitigation and follow-up.

Clause 430 clarifies that the obligation for federal authorities to ensure their action with respect to projects on federal lands do not cause significant adverse environmental effects is limited to the environmental effects caused by the components of the project that are situated on federal lands.

Finally, clause 432 proposes to close a loophole in the transition provisions. Currently, there is potential for a project to be exempted under the transition provisions even though it would have required an environmental assessment under the former act and would normally be subject to the new act. Where a proponent of a project was advised under the former act that an environmental assessment was not likely required, the transition provisions in CEAA 2012 exempt it from application of the new process.

This exemption would hold, even though a trigger under the former act—that is, a federal decision about a project—might subsequently be identified. The proposed amendment would subject a designated project, exempted under current provisions, to the requirements of the act if it is determined prior to January 1, 2014, that the project requires a federal decision that would have resulted in an environmental assessment under the former act. This amendment would ensure equitable treatment of similar designated projects under two different legislative schemes.

Fluff

**********Have a Nice Day**********

Preparing for Financial Disaster - A bit like Hurricane Sandy

There is a financial catastrophe in the forecast. 

We all know it's coming - but we don't exactly know when. Central bank money-printing policies   – combined with poor government fiscal restraint –  produced a debt bubble that cannot be inflated forever. It is going to implode. When it does, it'll make the 2008 financial crisis seem insignificant.
Debt implosions in Latin America, Greece, Italy, and Spain provide some insight.

Credit markets shut down so that one may not borrow money. Without credit you can't buy anything.  Banks limit money supply. Government confiscates your money or limits your ability to access it.

Government employees walk off the job when the government isn't able to pay them. Services are reduced or eliminated completely.
 
Vital services like electricity, water, and sanitation are restricted or shut off completely. Gasoline is rationed. Food becomes scarce. And medical supplies and services are limited.

There's some sort of financial implosion/storm heading our way. It's like a giant hurricane on a weather map.  "You don't need a weather man to know which way the wind is blowing."
 
Put together a "disaster kit". Enough fresh water and canned foods will likely get you through several days of hardship.  And keep a fair amount of cash on hand as well. But that is a temporary solution.

To protect yourself and your family - start building relationships with your neighbors, build resiliency within your community, shovel your neighbor's walk, pick up trash, hold a block party, and garage sales. You'll need each other to make things easier for everyone.
Learn how to garden, buy a community generator, get some solar panels, learn a trade or craft.

When the storm hits, it won't be too late, we all have to go sometime, but if you have prepared yourself and your neighbors you'll have a chance to live, albeit more modestly.

Back Bill Black(.com)

The smartest guy in the room...

He knows about the "inside job"

He knows how to assemble a team to "fix the problems


 His solutions:

http://backbillblack.com/the-best-way-to-rob-a-bank-is-still-to-own-one-a-postscript/
 
Bill Black: Geithner Channels Greenspan and Airbrushes Fraud out of our Crises
Fire Geithner, Fire Holder, Ask Bernanke to Resign, and Prosecute CEO’s and CFO’s
How to Hotspot Elite Financial Crimes
How Fraud Leads to Recurrent, Intensifying, Financial Crises, and Steps We Must Take to Stop that Cycle
US Economic Dogma Encourages Fraud and Perpetuates Recurring and Intensifying Financial Crises


About Bill Black (from aboutbillblack.com)

Bill Black was a regulator during the Reagan era. Following the fraud-induced Savings and Loan crisis, he was instrumental in putting over 1,000 elite criminals in prison. Dr. Black estimates that the fraud leading to our crisis was 70 times the magnitude of what led to the S&L crisis. Yet, we have seen no serious investigations or prosecutions. Bill Black’s background includes acting as Executive Director of the Institute for Fraud Prevention, Litigation Director of the Federal Home Loan Bank Board, Deputy Director of the Federal Savings and Loan Insurance Corporation, Senior Vice President and General Counsel of the Federal Home Loan Bank of San Francisco, Senior Deputy Chief Counsel of the Office of Thrift Supervision, and Deputy Director of the National Commission on Financial Institution Reform, Recovery and Enforcement. There is no one more qualified than Bill Black to clean up our financial sector. He has the integrity, experience, and determination that it will take to ensure that serious investigations are conducted and, if warranted, that rigorous prosecutions are pursued. Our conflicted legislators and policy-makers are not going to enlist Bill Black unless we give him a big push. They are beholden to an entrenched power elite that will fight to keep Bill Black from protecting citizens. Let’s give our president the excuse he needs to do the right thing, by sending him the message that we want Bill Black to be appointed.

62 Rivers

WHO thinks this stuff up?

Anyway, we know that a promise of protection (listing of the river) and actual protection are two entirely different things.

My warning: Don't hold your breath.



http://www.tc.gc.ca/eng/mediaroom/backgrounders-npa-scheduled-waters-6909.htm

Discussing changes to the NWPA - the barn door is open, the horse ran back in, and the barn is on fire!

http://www.ottawacitizen.com/Diving+into+Navigable+Waters/7478309/story.html
 
Diving into Navigable Waters
OTTAWA CITIZEN OCTOBER 31, 2012
Bruno Schlumberger, Ottawa Citizen
 
Photograph by: Bruno Schlumberger , The Ottawa Citizen
 
Does the federal government have a role to play in construction of the 
cottage docks and waterslides of the nation?
 
Canada’s Navigable Waterways Protection Act — which dates back to 1882 
and was brought in under Sir John A. Macdonald — says the federal 
government has a role in anything that could interfere with the 
navigation of Canada’s lakes, river and ocean shores. Common law 
supports that. The federal government, which is attempting to streamline 
the act as part of its latest omnibus budget bill, says its current role 
is far too broad.
 
The federal government has a point that the act, whose purpose is to 
protect the public’s right to navigation, is ripe for tweaking or even 
major amendments. Should it really be an issue for the federal 
government what size docks are (in some cases) or whether de-icing 
bubblers are installed near them?
 
Still, the federal government has failed to clearly make the case about 
how it is going about changing the 130-year-old act, except to say that 
it is cutting red tape and the changes are being welcomed by many 
municipalities. “A new streamlined approach to navigation law will cut 
red tape while resources are focused on Canada’s busiest waterways,” 
Transport Minister Denis Lebel wrote in the letter to the Citizen. 
Earlier, he told the House of Commons, “This act has created a 
bureaucratic black hole, holding up simple projects that do not impede 
navigation.”
 
Cutting red tape can cover a multitude of sins and should not be offered 
as a catch-all explanation for doing away with government oversight. In 
many cases red tape — even the most annoying kind (think airport 
security) — serves a necessary purpose. The real test is whether acts 
and laws achieve a necessary goal and do so without causing further 
harm. Lebel argues that the act causes harm by holding up simple 
projects, but is it also preventing harm?
 
The act was amended in 2009 to remove most minor works — including many 
cottage docks — and minor waterways, a change that made sense. The 
government now proposes removing most lakes from protection under the 
act. The new act, contained in the government’s second omnibus budget 
bill, includes a list of 97 lakes, 62 rivers and three oceans that 
retain protection under the act. For the remaining thousands of lakes in 
the country, there would no longer be a requirement for federal approval 
for construction to protect the right to navigation.
 
Including such major, and historic, changes in the omnibus budget bill 
means they will have less scrutiny and chance for thoughtful amendment 
than if the changes had been introduced independently.
 
More time would give the federal government a better chance to explain 
how it selected 97 lakes and 62 rivers to include among the inland 
waterways that will continue to have federal protection. Transport 
Canada has produced a complex formula that it says was used to select 
the proposed scheduled waterways. It includes information that looks at 
how busy the waterways are with recreational and commercial traffic, how 
much infrastructure there is, such as wharfs, their historic importance, 
proximity to heavily populated areas and more. The department notes that 
it could add to the list over time.
 
The government argues its selection process was scientific, yet an 
analysis by Citizen reporter Glen McGregor points out that the vast 
majority of those waterways listed happen to be in Tory ridings. 12 
alone are in the Muskoka riding of Treasury Board President Tony 
Clement, including Lake Rousseau which has some of the most expensive 
cottage real estate in North America, some of it owned by Hollywood 
celebrities.
 
Coincidence? It could well be. But the list itself and the process of 
selecting waterways deserves more scrutiny. Why should only lakes near 
large population centres be protected under the act? Do Canadians not 
also have navigation rights to more remote lakes? And is protection 
under the law something that benefits local property owners or is a 
hindrance to them? And what effect would the changes have on the 
environment or large resource projects near more remote waterways?
 
The law has been there since Sir John A. was in office. That suggests 
that it was due for review, but also that it deserves to be modernized 
with care.
 
Ottawa Citizen

History.... is a whore

"History is a whore"

what does this mean? First of all its a quote from

Erik Durschmied (the war guy)

It means that it is difficult to truly know what has happened. The victor in any conflict tells their side of the story as if there is no other truth, which of course, is often not the truth as it really exists.

It means that those in power, or that control mainstream media write news and create history simply because they can.

Erik is full of world wisdom like this diamond on war correspondence:

"You get in... you get it, ... and you get out!"

"Some do it for the money, some do it for excitement, some do it because they can't escape it"

"Nobody can escape his upbringing, his environment... his basic character"

"Nothing is really 'small' if it is your family, in your neighborhood, or your life that is affected"

To really appreciate history and the depth of its meaning look to these words...

“Historic it is not just sickness of our age. Every age has heralded its ‘historic’ moments while ignoring the true meaning of history as a living totality of time - past, present and future.
Yet, our age of instant communication tends to overly “historisize’ an event or an individual without giving it due time to mature and organically enter the fabric of human memory."

Taken from : http://www.sodahead.com/united-states/historic-is-the-new-whore-of-history/blog-85679/

EcoJustice Report

Nice work by

William Amos, M.A., LL.B/B.C.L.
Director/Directeur
Ecojustice Environmental Law Clinic at the University of Ottawa
Leblanc Residence
35 Copernicus St., Rm 110, Ottawa ON K1N 6N5 
Tel: 613.562.5800 ext. 3378 
Fax: 613.562.5319
wamos@ecojustice.ca

Conclusion
Although a handful of proposed amendments to the NWPA in Bill C-45 may enhance protection of navigation and navigable waters, the overall deregulatory impact will be to weaken Canadians’ public right of navigation. In essence, the federal government is doing its utmost to “get out of the business” of protecting navigable waterways across the country, except for three oceans, 97 lakes, and portions of 62 rivers. The majority of Canada’s waterways will not be subject to statutory navigation protections, leaving citizens clinging to the leaky lifeboat of common law in the fast-moving currents of economic growth.

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Legal backgrounder Bill C-45 and the Navigable Waters Protection Act (RSC 1985, C N-22)
Overview
For 140 years, the protection of navigation rights and the waters that enable it have been core to the federal role in environmental governance across Canada. The Navigable Waters Protection Act (NWPA) is one of Canada’s oldest federal environmental laws, enacted by Parliament in 1882. The NWPA built upon pre-existing common law navigation rights and the federal government’s exclusive jurisdiction over navigation and shipping pursuant to section 91(10) of the Constitution. Since that time, the NWPA has protected the rights of Canadians to navigate Canada’s waterways without interference from logging operations, bridges, pipelines, dams, and other forms of industrial development.
The interrelationship between navigation and the environment is such that the protection of the former consistently promotes the health of the latter. Consequently, the NWPA has consistently served as a federal tool to achieve environmental protection. Indeed, Transport Canada’s own documents clearly recognize what the federal government now denies: That one of the NWPA’s goals is to ensure the “protection of the environment.”1
The Supreme Court of Canada, in Friends of the Oldman River Society v. Canada (Minister of Transport), examined the constitutional validity of federal environmental assessment guidelines and cited the NWPA as a valid federal statute that legislated with respect to the environment. The court stated:
“…it defies reason to assert that Parliament is constitutionally barred from weighing the broad environmental repercussions, including socioeconomic concerns, when legislating with respect to decisions of the nature. The same can be said for…navigation and shipping. [Sections 21 and 22] of the Navigable Waters Protection Act are aimed directly at biophysical environmental concerns that affect navigation…the [NWPA] has a more expansive environmental dimension, given the common law context in which it was enacted.”2
1 Government of Canada, Navigation Services, online: Marine Services On-Line . As recently as July 29, 2010 (i.e., long after the 2009 amendments were enacted), the Navigable Waters Protection Program website’s front page included the following sentence: “The Navigable Waters Protection Program (NWPP) is responsible for the protection of the public right to navigation and the protection of the environment through the administration of the Navigable Waters Protection Act (NWPA).” Transport Canada, Navigable Waters Protection Program: Overview, online: Internet Archive .
2 [1992] 1 S.C.R. 3 at paras. 88-89.
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As discussed in greater detail below, the deregulation of federal navigable waters law first occurred in 2009. Those amendments to the NWPA — like the ones proposed by Bill C-45 — were passed as part of an omnibus budget bill tabled by the then-minority government. The changes significantly weakened environmental protection of Canada’s waterways, most notably by reducing the number/types of projects subject to NWPA approvals that “triggered” a federal environmental assessment process. Their enactment amounted to an end run around democratic process: they were not subject to a detailed clause-by-clause analysis by Parliamentary Standing Committees, and were not subject to any significant debate prior to a confidence vote which tied the hands of opposition parties.
The most recent amendments to the NWPA, tabled on October 18, 2102 in Bill C-45, would further weaken navigational and environmental protection of Canada’s waterways. These amendments would change the statute’s name to the Navigation Protection Act (NPA), a change that reflects the government’s desire to completely separate navigation from the environmental component that enables it. In other words, the law will no longer protect navigable waters — it will only protect navigation.
Although regulation for the sake of regulation is not desirable, the proposed amendments go to the opposite extreme: the NPA would exclude 99.7 per cent of Canada’s lakes3 and more than 99.9 per cent of Canada’s rivers4 from federal oversight. For the few navigable waters that remain regulated under the NPA, the protection offered by the law will be significantly weakened.
While Bill C-45 contains some changes that may enhance the protection of Canada’s navigable waters, the overall effect of the proposed amendments is a dangerous deregulation of Canada’s waterways that will make it difficult, if not impossible, for Canadians to enforce their long-standing navigation rights. The amendments go far beyond what is necessary to reduce “red tape” for beleaguered cottage-goers, farmers and municipalities that propose small projects (e.g. docks, footbridges, etc.). Under the proposed NPA, proponents of industrial development and large infrastructure projects (e.g. Enbridge’s Northern Gateway pipeline) will be given free rein to disrupt and impact Canadian waterways without regard to either navigation or environmental rights.
Why does Canada need strong federal protection of navigable waters?
There are several reasons why we need a strong federal law to protect navigable waters:
 The Canadian nation was built, in part, on the public right to navigation. Although transportation and commerce are no longer entirely dependent on navigation, many businesses depend on unimpeded waterways for their economic well-being. A strong federal law ensures that tourism, recreational fishing and angling,
3 The federal government lists the number of known lakes in Canada at 31,752. Natural Resources Canada, The Atlas of Canada: Lakes, online: Natural Resources Canada . However, the federal government’s data is based on a 1973 study; by comparison, the Ontario government claims that there are 250,000 lakes in Ontario alone: Ontario Ministry of Natural Resources, Water Resources, online: Ontario Ministry of Natural Resources .
4 It is estimated that Canada contains over 2.25 million rivers, 62 of which are protected under the NPA.
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and other outdoors-related businesses do not suffer economic harm from development that interferes with navigation. As well as protecting businesses with a direct interest in the waterways, a strong federal law also protects businesses that are supported by recreational paddlers and fishers, such as outfitters, outdoor gear retailers, restaurants and hotels. A strong federal law that protects all of Canada’s waterways ensures that businesses located in small communities can continue to create long-term jobs and generate economic returns for those communities.
 Protecting navigable waterways also protects the economic and health benefits provided by the water itself. A strong federal benefits Canadians by ensuring that development does not negatively affect water supplies, fish and fisheries, and natural water purification and filtration services. Besides providing obvious health benefits to Canadians, these indirect effects may also help communities economically by reducing their infrastructure needs.
 A strong federal law is important to the fulfillment of Canada’s international obligations under the Boundary Waters Treaty. Some of Canada’s obligations under that Treaty are dealt with in the International Boundary Waters Treaty Act,5 but many are not. For example, Article III of the Boundary Waters Treaty requires Canada to seek approval of the International Joint Commission before permitting interference with the natural flow or level of boundary waters. However, under the NPA, Canada would not regulate a number of boundary waters, jeopardizing the government’s ability to comply with the Boundary Waters Treaty, resulting in international tensions and exposing Canadian taxpayers to liability for damages claims.
 Since the government holds Canada’s waters in trust for the benefit of Canadians, it has a duty to protect the public right of all Canadians to navigate waterways in a fair and transparent manner. This duty falls exclusively to the federal government, which is granted sole authority over navigation and shipping under section 91(10) of the Constitution. Provincial governments have no authority to regulate navigation on any Canadian waters, so there is no question of intergovernmental overlap and duplication.
 Although the common law may be used to protect navigational rights above and beyond the terms of the NWPA, reliance on the common law embraces a reactive, rather than proactive approach to protecting navigable waters. In other words, the common law will generally only fix the harm after it has occurred. By proposing to turn back the clock and rely on common law precedent to protect most navigable waters, Bill C-45 improperly shifts the federal government’s responsibility to enforce the law onto citizens. Citizens will be forced to pay out of their own pockets to bring lawsuits against the federal government or project proponents, resulting in delays and uncertainties as the judicial system grinds along. The common law is also not well-equipped to deal with a situation in which a series of small works, none of which substantially interfere with navigation on their own, have cumulative and substantial impacts on navigation.
5 International Boundary Waters Treaty Act, RSC 1985, c I-17.
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History of the Navigable Waters Protection Act
 The NWPA was enacted in 1882. Although the primary purpose of the law was to protect the public right of navigation, the law was instrumental in achieving the protection of Canada’s rivers from obstruction and pollution related to industrial logging activities.6
 Although the law remained largely unchanged until 2009, the enactment of the Canadian Environmental Assessment Act (CEAA) enhanced the level of environmental protection provided by the NWPA. Under CEAA, the issuance of an approval under the NWPA triggered the federal environmental assessment process.
 In 2009, the government passed amendments that significantly weakened the NWPA’s protections for navigation and the environment. The amendments introduced a tiered classification system for waterways and significantly narrowed the classes of waterways protected under the NWPA. In addition, the amendments granted the government unfettered discretion to further exempt certain classes of works and waterways from the NWPA’s approval process. Pursuant to the 2009 amendments, exempted waterways were not subject to the approval process, meaning that they no longer triggered a federal environmental assessment. The amendments also reduced transparency and accountability by eliminating the need for public notification and consultation on all projects that the government determined would not substantially interfere with navigation.
 In July of 2012, the federal government passed the Jobs, Growth and Long-term Prosperity Act7, which re-wrote and scaled back the federal environmental assessment process. As a result, NWPA approvals no longer trigger any federal environmental assessment ever, further weakening a previously interconnected federal regime of navigational and environmental protections.
How does the NWPA work?
The term ‘navigable water’ is not exhaustively defined in the NWPA, where Section 2 provides that a navigable water “includes a canal and any other body of water created or altered as a result of the construction of any work.” The definition of navigable water at common law has evolved on a case-by-case basis, based on the factual circumstances of each case. Over a century ago, the Privy Council established the “floating canoe” test for navigability, resulting in a low threshold to assert the public right to navigation.8 In 2011, the Ontario Superior Court of Justice concluded that the common law of navigability “requires that the waterway be navigable” and “must be capable in its natural state of being traversed by large or small craft of some sort.”9
For its part, Transport Canada offers a similarly broad definition, reflecting many of the principles established at common law:
6 Benidickson, Jamie. The Culture of Flushing: A Social and Legal History of Sewage, UBC Press, 2007.
7 Jobs, Growth and Long-term Prosperity Act, S.C. 2012, c. 19.
8 Quebec (Attorney General) v. Fraser (1906), 37 S.C.R. 577 (S.C.C.); affirmed [1911] A.C. 489 (P.C.)
9 Simpson v. Ontario (Minister of Natural Resources), 2011 ONSC 1168.
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“In general, navigable waters include all bodies of water that are capable of being navigated by any type of floating vessel for transportation, recreation or commerce. *Note: Frequency of navigation may not be a factor in determining a navigable waterway. If it has the potential to be navigated, it will be determined ‘navigable’.” 10
Prior to the 2009 amendments, the NWPA provided significant protection to both navigation and the environment. The NWPA prohibited the construction of any work in, on, over, under, across, or through a navigable water without approval from the Minister of Transport. Projects that would not, in the Minister’s opinion, interfere substantially with navigation did not require an approval. However, in recognition of the fact that, by their very nature, bridges, booms, dams and causeways always substantially interfered with navigation, the NWPA provided that these projects always required an approval, regardless of the Minister’s opinion.
In order to obtain an approval, the proponent had to submit a project description and plans to the Minister. The NWPA required that the proponent give the public one month’s notice of the proposal through advertisements in the Canada Gazette and two newspapers. Since this requirement applied before the potential triggering of a federal environmental assessment, public participation opportunities were guaranteed even if the Minister decided that the project would not substantially interfere with navigation. Where the project would substantially interfere with navigation, a federal environmental assessment was required before the Minister could issue an approval under the NWPA.
Failure to obtain a required approval was an offence subject to a maximum fine of $5,000.
The NWPA provided the Minister with powers to remove obstructions, such as sunken vessels, from navigable waters. The NWPA also prohibited the dumping (in navigable waters or waters flowing into navigable waters) of debris or any material liable to interfere with navigation. The NWPA further prohibited the dumping, in navigable waters less than 20 fathoms (1 fathom is approximately 1.8 metres) deep, of materials liable to sink to the bottom. Cabinet had the power to exempt specific waterways from these prohibitions, if it was not contrary to the public interest to do so, and the Minister had the power to designate certain navigable waters as dumping places. Contravention of these provisions attracted a maximum fine of $5,000.
The NWPA empowered the Minister to make interim orders where “immediate action is required to deal with a significant risk, direct or indirect, to safety or security.” These orders were subject to strict transparency requirements, in that they:
 Expired after 14 days unless approved by Cabinet;
 Had to be published in the Canada Gazette within 23 days after being made; and
10 Transport Canada, Frequently Asked Questions, online: Transport Canada .
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 Had to be tabled in both Houses of Parliament within 15 days after being made.
NWPA as amended in 2009
In 2009, the federal government passed amendments that significantly weakened the NWPA’s protections for navigation and the environment. While these amendments did not affect the dumping prohibitions and the obstruction powers, they opened the door to reducing the number of waterways protected by the NWPA through the introduction of “minor works” and “minor waters” orders.11
Almost immediately upon passage of these amendments, then-Transport Minister, John Baird, issued an order exempting certain classes of works (e.g. small culverts or dams) and navigable waters (e.g. seasonal waters or creeks) from the NWPA approval requirement. The amendments also authorized the Minister of Transport or the federal Cabinet to add to the list of exempted works or waterways, without subjecting these powers to any limited set of objective criteria.12 While bridges, booms, dams and causeways had always been deemed to interfere substantially with navigation under the pre-2009 NWPA, the amendments allowed the Minister to unilaterally and pre-emptively decide that such projects would not substantially interfere with navigation, resulting in the avoidance of previously mandatory public consultation requirements discussed below.
By allowing certain projects to proceed without an NWPA approval, the federal government achieved its broader deregulatory objective of reducing the number of projects subject to a federal environmental assessment. This rollback of federal environmental assessment was completed with amendments to CEAA in the 2012 omnibus budget bill, pursuant to which all NWPA approvals ceased to automatically trigger a federal environmental assessment.
In addition, the amended NWPA no longer requires public notice and comment opportunities for any projects that would not substantially interfere with navigation,13 and Ministerial powers can be exercised without public consultation or Parliamentary review.14 So while modernizing and streamlining the NWPA regulatory regime was top-of-mind, it is clear that this objective was taken to such an extreme that even the most basic of transparency mechanisms was sacrificed.
On the positive side, a number of inspection and enforcement powers were added to the NWPA in 2009, and penalties for offences were increased to a maximum of six months imprisonment or a $50,000 fine. In addition, the Minister was given the power to obtain an injunction to prevent an offence.15
11 NWPA, s. 5.1.
12 NWPA, ss. 12(1)(e), 13(1)(a).
13 NWPA, s. 9(3), (4), (5).
14 NWPA, s. 13(2): Ministerial orders exempting works and waterways from the approval process are not statutory instruments governed by the Statutory Instruments Act, R.S.C. 1985, c. S-22. Sections 19 and 19.1 of the Statutory Instruments Act require that all statutory instruments be referred to committees of either or both Houses of Parliament for review and scrutiny.
15 NWPA, s. 38.
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But enforcement improvements notwithstanding, the overall NWPA reform thrust in 2009 was one of deregulation and exclusion of public consultation and debate. As the section below articulates, the newly proposed changes to the NWPA further erode Canada’s legislative protections of both navigable waters and navigation rights.
What do the proposed changes in Bill C-45 mean?
The NWPA’s effectiveness as an environmental and navigational protection tool was significantly impaired by the 2009 amendments and the 2012 omnibus budget bill (Jobs, Growth and Long-term Prosperity Act). The latter rolled back and re-wrote the Canadian Environmental Assessment Act such that approvals issued under the NWPA no longer trigger a federal environmental assessment.
The amendments proposed in Bill C-45 continue this dangerous deregulation of Canada’s waterways. While the overall impact of the proposed Navigation Protection Act on navigation and the environment is negative, it must be acknowledged that some of the proposed amendments might benefit navigation and the environment. The most significant amendments are discussed below.
1) Drastic Reduction in Number of Protected Waterways
The NPA would maintain the tiered classification system introduced in 2009, which grant the Minister authority to exempt specific works and waterways from the NPA approval process.16 The exercise of this power is not subject to Parliamentary oversight.17
But by far the most significant change, if enacted, is that the NPA will not protect the vast majority of Canada’s waterways from development that interferes with navigation. Rather, the government will leave it to citizens to use the common law to achieve this protection. The NPA will only protect navigation on waters listed in a schedule to the Act.18 The proposed schedule19 includes 3 oceans, 97 lakes, and portions of 62 rivers. By comparison, Canada is estimated to contain at least 32,000 lakes and more than 2.25 million rivers: The NPA would exclude 99.7 per cent of Canada’s lakes and more than 99.9 per cent of Canada’s rivers from federal oversight. Notably absent from the proposed schedule are significant rivers in British Columbia, such as the Kitimat and Upper Fraser Rivers, which lie along the path of the proposed Northern Gateway pipeline. Notably included are popular cottage-country lakes such as those in Muskoka, where wealthy powerboat owners will continue to enjoy unfettered navigation protections.
Practically speaking, this means that the vast majority of non-listed Canadian navigable waters will be left unprotected in the following ways:
16 See sections 10 and 28(2)(a) and (b) of the proposed NPA.
17 Section 28(5) of the proposed NPA.
18 Section 3 of the proposed NPA prohibits the construction, operation, etc. of works only in navigable waters listed in the schedule, except in accordance with the NPA.
19 Transport Canada, Navigation Protection Act: Proposed List of Scheduled Waters, online: Transport Canada .
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 Proponents will not have to notify the government that they are building a work that interferes with navigation;
 Proponents will not need the Minister of Transport’s approval before building a work that interferes with navigation; and
 The Minister of Transport will have no legislative authority under the NPA to remove obstructions or require that owners of such obstructions do so themselves, with one exception.20 Beyond infringing the right of navigation, this may have significant environmental consequences, as sunken vessels and other obstructions may indefinitely release harmful substances into waterways without a removal requirement.
The NPA would allow the owner of a work to opt into the regulatory process, if the Minister deems it justified in the circumstances.21 This means that where a proponent wants to build a work in a non-listed navigable water, the proponent may ask the Minister to be regulated under the NPA. Although the government claims that proponents may wish to opt in to avoid the uncertainty of the common law protections of navigation rights (see below), this provision inappropriately places the decision of applying the regulatory regime in the hands of the proponent. It also reduces transparency and accountability in decision-making.
The NPA would also allow the federal Cabinet (Governor-in-Council) to enact regulations adding navigable waters to the schedule list, but only if such additions are: i) in the national or regional economic interest; ii) in the public interest; or, iii) requested by a local authority.22 However, there is no requirement that Cabinet add to the schedule and none of these criteria explicitly incorporates sustainability or environmental protection considerations.
The deregulation proposed by the NPA could have significant impacts for aboriginal rights. Although the Crown has a duty to consult and, where appropriate, accommodate aboriginal peoples where the Crown is contemplating conduct that could adversely impact aboriginal rights, no such duty lies on private entities. Since the NPA would remove all government “conduct” from decision-making for non-listed navigable waters, it is possible that unregulated projects interfering with navigation could also negatively impact aboriginal rights without any consultation or accommodation.
2) Lack of Accountability, Transparency and Public Participation in Decision-making
The drastic reduction in the number of navigable waters that would be protected by the NPA will lead to decreased accountability, transparency and public
20 The obstruction provisions in Part II of the proposed NPA are limited to listed navigable waters, with one exception. Under section 16(2) of the proposed NPA, the Minister’s power to order an obstruction removed or destroyed applies where the obstruction is on federal property.
21 Section 4 of the proposed NPA.
22 Section 29 of the proposed NPA.
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participation in decision-making involving deregulated waterways. However, the NPA would also limit accountability, transparency, and public participation in decision-making involving those few remaining regulated navigable waters.
Consistent with the 2009 NWPA amendments, the NPA would remove Ministerial orders (including orders to exempt classes of works and waterways) from normal Parliamentary oversight. While notice of the orders would have to be published in the Canada Gazette within 23 days, the orders are shielded from the usual pre-publication public comment period and from Parliamentary review. 23
Significantly, the NPA would remove all automatic public participation opportunities. Whereas public notice and comment periods remain mandatory under the NWPA for projects which will substantially interfere with navigation on listed waterways, the NPA would make all public notice and comment requirements discretionary.24 This means that the Minister could choose to fast-track a project that substantially interferes with navigation without providing for public comment or any notice.
The NPA would also allow the Minister to sign agreements to delegate any responsibility, power, or duty under the Act.25 Such agreements could be reached with any person or organization and it is fair to presume that provincial and municipal governments are the target of this delegation provision. This raises questions about the capacity, financial and otherwise, of these levels of government to adequately implement navigation regulation. It also raises questions about what oversight mechanisms the federal government might employ to ensure any such delegated administration of navigation regulations is adequately implemented.
Some proposed amendments may have positive effects on accountability and transparency in decision-making for the limited set of listed regulated waterways. For example, the NPA would include a non-exhaustive list of criteria for the Minister to consider in determining whether a work would substantially interfere with navigation. The listed factors include the characteristics of the navigable water in question, the safety of navigation, the current or anticipated navigation in that water, the impact of the work on navigation in that water, and the cumulative impact of the work on navigation in that water.26 Although providing clarity, this list identifies obvious factors that are likely considered in any event, so its benefit is minimal. Unfortunately, with this clarity comes certainty that these factors do not include environmental concerns as a required consideration.
Furthermore, if public comments are solicited by the Minister, they will be used to inform the substantial interference decision. To the degree such comments
23 See section 28(5) of the proposed NPA.
24 Sections 5(6) and (7) of the proposed NPA.
25 Section 27 of the proposed NPA.
26 Section 5(4) of the proposed NPA.
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are sought, this will enhance public participation by engaging the public at an earlier stage in the decision-making process. The current public participation requirements under the NWPA are only triggered after the Minister makes the substantial interference decision, and are presumably used to inform terms and conditions imposed on an approval.
In conclusion, while Bill C-45 does offer marginal improvements, the overall effect of the new NPA regime would be to decrease accountability, transparency, and public participation in the protection of Canada’s navigable waters.
3) Retention of Dumping Prohibitions and Closing of Loopholes
The dumping of foreign materials, objects and debris into navigable waters may have serious negative impacts on both navigation and navigable waters. The dumping provisions contained in the existing NWPA are retained in the NPA with slight modifications to update the language.27 Significantly, these prohibitions apply to all navigable waters, and are not limited to those waters listed in the schedule to the NPA.
In addition, the Bill C-45 amendments would prohibit the dewatering of any navigable water.28 This is a positive reform, as it has become clear that unscrupulous mining companies have sought to avoid regulatory restrictions under the NWPA dumping prohibitions by dewatering streams prior to depositing waste in them. This amendment is intended to close that loophole and represents an important strengthening of the dumping prohibitions.
While strengthening the dumping prohibitions on paper, the impact of these amendments may be limited by the government’s dedication of resources to enforce the prohibitions. The government’s stated purpose in amending the NWPA is to “focus Transport Canada’s resources on the country’s most significant waterways.”29 Given this position and broader fiscal constraints, it is highly questionable whether Transport Canada will devote sufficient resources, if it devotes any at all, to enforce dumping prohibitions for navigable waters not listed in the schedule to the NPA. As a result, this beneficial amendment may amount to nothing more than a paper tiger.
4) Enhancement of Enforcement Powers
Although broad enforcement powers were included in the NWPA for the first time in 2009, the proposed NPA would expand upon these powers.
As regards enforcement, the NPA would create a new administrative monetary penalty (AMP) regime to complement the existing and separate offences regime (under which contraventions could result in a maximum of six months imprisonment or a $50,000 fine, or both).
27 Sections 21 and 22 of the proposed NPA.
28 Section 23 of the proposed NPA.
29 Transport Canada, “Speaking notes for the Honourable Denis Lebel, Minister of Transport, Infrastructure and Communities for the announcement of proposed amendments to the Navigable Waters Protection Act,” online: Transport Canada .
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Under the AMP regime, persons designated by the Minister could issue a notice of violation to any person contravening designated provisions of the NPA.30 Individual and corporate violations would be subject to maximum fines of $5,000 and $40,000 respectively.31 Proof of contested violations would be on a balance of probabilities32 and subject to a due diligence defence,33 with a right of appeal regarding the commission of the violation and the penalty amount to the Transportation Appeal Tribunal of Canada.34
The Minister’s power to obtain an injunction, introduced in 2009, would be preserved, and would apply to the prevention of violations as well offences.35
The incorporation of an AMP regime would provide a mechanism for the government to more easily and inexpensively enforce contraventions of the NPA. Whereas enforcing the offences provisions of the NPA would require the government to prove the offence beyond a reasonable doubt, the administrative monetary penalty regime provides for a lower standard of proof. The AMP regime also provides for simplified procedures and avoids the necessity of going to court.
The NPA would increase the number and types of offences punishable under the Act. For example, the NPA would impose a duty upon owners of works in listed waters to take corrective measures where the work causes or threatens to cause serious and imminent danger to navigation.36 Under this duty, all reasonable measures consistent with public safety and the safety of navigation must be undertaken as soon as feasible; measures may include steps to counteract, mitigate, or remedy adverse effects that actually or might reasonably result from the danger. An owner’s failure to discharge this duty would be an offence under the NPA.37
Finally, the NPA would explicitly recognize the liability of directors of corporations under both the administrative monetary penalty and offences regimes.38 This means that, if a corporation commits a violation or offence under the NPA, any officer or director of that corporation can be held personally liable for the violation or offence. In other words, if a corporation has no assets or goes bankrupt, the government can collect the fine from a director or officer of that corporation. In a similar vein, the NPA would impose a positive duty on directors and officers of corporations to take all reasonable care to ensure that the corporation complied with the NPA.39 Although this provision establishes a
30 Section 39.11 of the proposed NPA.
31 Section 39.1(3) of the proposed NPA.
32 Section 39.18 of the proposed NPA.
33 Section 39.17(1) of the proposed NPA.
34 Sections 39.13(1) and (2) of the proposed NPA.
35 Section 38(1) of the proposed NPA.
36 Section 12(2) of the proposed NPA.
37 Section 40(1)(e) of the proposed NPA.
38 For violations: section 39.19 of the proposed NPA. For offences: section 40(4) of the proposed NPA.
39 Section 40(5) of the proposed NPA.
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potential due diligence defence for corporate directors, it also makes clear the responsibility of those directors to actively ensure compliance with the NPA. This is a positive new development.
5) Pipelines, Power Lines and National Marine Conservation Areas
Bill C-45 also contains a number of proposed coordinating amendments relating to the NWPA. While these provisions mainly serve to change the name of the NWPA to NPA in other statutes, and do not introduce new changes, several of the provisions have environmental implications that are worthy of mention.
First, certain regulations made under the Canada National Marine Conservation Areas Act would retain their supremacy over regulations made under the NPA.40 This would apply to regulations pertaining to fisheries management, restricting or prohibiting marine navigation in marine conservation areas. Under the Canada National Marine Conservation Areas Act, these regulations must be made only with the joint approval of the Minister responsible for Parks Canada and the Minister of Transport. This means that the Minister of Transport cannot unilaterally exempt navigable waters from the NPA where those waters are located in a marine conservation area. This is a positive development.
Additional coordinating provisions confirm that pipelines and power lines are not works for the purposes of the NPA.41 In other words, the NPA doesn’t apply to large pipelines and power lines. NPA does apply to small pipelines that are classified as minor works; these are exempted from the approval process. These amendments are not new; they were amended pursuant to the Jobs, Growth and Long-term Prosperity Act.42
As a result, the National Energy Board Act and Canada Oil and Gas Operations Act already provide that the National Energy Board (NEB) has jurisdiction over the navigational impacts of interprovincial/international and offshore oil and gas pipelines and power lines. Pursuant to sections 58.3 and 110(2) of the NEB Act, as amended by Bill C-38, the NEB "shall take into account the effects that its decision might have on navigation, including safety of navigation" when making decisions about such projects.43 However, these processes are not environmental assessments, and the degree to which the NEB is competent to assess the navigation impacts of pipelines is open to serious debate.
Due to the rollbacks of federal environmental assessment law with the enactment of the Canadian Environmental Assessment Act, 2012, it may be that this transfer of jurisdiction to the NEB enhances protection of navigable waters in some limited circumstances. While projects overseen by the Canadian Environmental Assessment Agency may not be subjected to any environmental
40 See clause 342 of Bill C-45.
41 See clauses 349(2), (5) and (9) of Bill C-45.
42 S.C. 2012, c. 19, ss. 87, 91.
43 Jobs, Growth and Long-term Prosperity Act, S.C. 2012, c. 19, ss. 87, 91.
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assessment, pipelines and power lines regulated by the NEB are subject to mandatory environmental assessments, pursuant to CEAA 2012.44
6) Reliance on the Common Law to Protect Navigation: An Inadequate Safety Net
The federal government has clearly stated that, to the extent the NPA will not protect navigation on non-listed navigable waters (ie. the majority of Canadian waterways), the common law applicable to navigation rights will still apply.45 The federal government appears to take the position that the common law actually provides stronger protection for navigation by stating that, at common law, the public right of navigation is prioritized over other interests.46 It is clear that, at common law, the public right of navigation is paramount to all other rights in navigable waters, as long as the right is exercised in a reasonable manner with due care not to harm others.47
This prioritization at common law contrasts with the NWPA’s dual mandate of “balancing the need to allow critical infrastructure to be built” with the right of navigation.48 But complicating this dual mandate is the interrelationship between navigation and its corollary aquatic environment, given that the protection of the former has historically promoted the health of the latter. Certainly, the maintenance of ecologically sustainable flow rates is inextricably linked to the maintenance of navigational flow requirements. In light of this relationship, it is reasonable to anticipate that Canadian courts will be called upon to determine whether, and to what degree, the common law right of navigation extends to protecting the aquatic environment.
At common law, obstructions that significantly interfere with navigation constitute a public nuisance. Generally, only the government is entitled to prosecute public nuisance offences, but private citizens may do so where they have suffered special damages above and beyond those suffered by the general public. Thus, for example, a canoe/kayak tour operation business harmed economically because a dam restricts guided river tours may bring an action to sue the owner of the dam for public nuisance. To be sure, this cause of action may still be available even where the dam is authorized under the NWPA, although the law on this question is unsettled.49 The government’s position articulated above does little more than clarify the common law reality that citizens may, in appropriate factual circumstances, sue owners of works that interfere with navigation for public nuisance.
44 The NEB will only have to conduct an environmental assessment for interprovincial/international or offshore pipelines and powerlines that are over 75 km in length and occur on a new right of way: Regulations Designating Physical Activities, SOR/2012-147, Schedule, ss. 34, 38.
45 http://www.tc.gc.ca/eng/mediaroom/backgrounders-npa-common-law-right-naviagtion-6907.htm
46 Transport Canada, Navigation Protection Act: Common Law and the Right of Navigation, online: Transport Canada: .
47 Wood v. Esson, [1884] 9 S.C.R. 239.
48 http://www.tc.gc.ca/eng/mediaroom/backgrounders-npa-protection-waterways-6913.htm
49 Gerard V La Forest, Water Law in Canada – The Atlantic Provinces (Ottawa: Information Canada, 1973) [“Water Law in Canada”] at 251-252.
Published by Ecojustice, October 2012
For more information, please visit: ecojustice.ca
The lack of federal oversight for projects in non-listed navigable waters would make it extraordinarily difficult to enforce the public right of navigation on a consistent basis. Reliance on the common law to protect the majority of Canada’s waterways is problematic in several ways:
 The government holds Canada’s resources in trust for Canadian citizens; as such it has a responsibility to ensure that public resources, including navigable waters, are not disrupted, depleted, or destroyed for present and future generations. By deferring to the common law as applied by Canadian courts to protect the majority of Canada’s navigable waterways, the government is shirking its responsibility to protect them and the public rights they underpin.
 Reliance on the common law shifts the burden of protecting Canada’s waterways onto private citizens, public interest groups and businesses (ie. outdoor adventure companies) with a vested interest in preserving navigable waters as a public and economic resource. Most citizens and groups do not have the time or resources to pursue lawsuits, and this problem is often compounded by the inequality of resources as between those impacting navigation and those protecting it. Furthermore, it is inappropriate to require a private citizen to bear the costs and uncertainties associated with litigation in order to enforce a public right. In effect, this is the ultimate in “privatization” of Canada’s navigation regulatory regime. Paradoxically, the deregulation of Canada’s navigable waterways may result in increased uncertainty for project proponents in the face of sporadic, costly and time-consuming litigation based on common law protections of navigation rights.
 The inclusion of the opt-in provision in section 4 of the NPA, which allows anyone building a work on a non-listed water to ask to be re-regulated, clearly indicates that the government anticipates that significant uncertainty will be generated by the litigation that will result from renewed reliance on the common law.
 To the extent that citizens or public interest groups can finance lawsuits, the NPA amendments would make it nearly impossible to identify works that substantially interfere with navigation, by removing public notice requirements for all but a select few projects. Without knowing what works are being planned, it will be next to impossible to ensure that they do not interfere with the right of navigation.
 The government has suggested that the common law will uphold a citizen’s right to remove a navigational obstruction.50 While courts in the past have recognized the rights of navigators to remove obstacles to navigation, this right only arises when the navigator has suffered special
50 Transport Canada, Navigation Protection Act: Common Law and the Right of Navigation, online: Transport Canada: .
Published by Ecojustice, October 2012
For more information, please visit: ecojustice.ca
damages from the interference with navigation, and must be exercised reasonably and with due care to avoid causing harm to others.51 Aside from encouraging vigilantism, this approach to the common law places an inordinate amount of risk on private citizens, effectively encouraging them to risk being sued in order to uphold their right of navigation.
 Reliance on the common law as a safety net beneath a less comprehensive NPA embraces a strongly reactive, rather than proactive and precautionary, approach to regulating navigable waters. Courts will generally only compensate harm after it has occurred, and given the lack of public notice requirements for projects related to non-listed waters, obtaining an injunction would be extremely difficult. As a result, reliance on the common law inherently encourages the infringement of the public right of navigation, with a remote possibility of remedying harms after they have occurred.
Conclusion
Although a handful of proposed amendments to the NWPA in Bill C-45 may enhance protection of navigation and navigable waters, the overall deregulatory impact will be to weaken Canadians’ public right of navigation. In essence, the federal government is doing its utmost to “get out of the business” of protecting navigable waterways across the country, except for three oceans, 97 lakes, and portions of 62 rivers. The majority of Canada’s waterways will not be subject to statutory navigation protections, leaving citizens clinging to the leaky lifeboat of common law in the fast-moving currents of economic growth.
51 Zwicker