An open letter to FactsCan.ca on Navigable Waters and Environmental Protection
To Jacob Schroeder, editor, FactsCan.ca
cc. New Democratic Party Canada
Dear Folks at FactsCan.ca:
Re: Navigable Waters and Environmental Protection
We write in regard to your recent “fact check” of a 2014 petition by the New Democratic Party of Canada (NDP) related to the removal of environmental protection from 2.5 million of Canada’s lakes and rivers. The NDP states that “Canada went from 2.5 million protected lakes and rivers, down to just 159 under the Conservatives.” You conclude that this statement is “misleading” (indeed, on Twitter, “VERY misleading.”)
We have ourselves made similar statements to the one made in the NDP Petition. Indeed, on 31 August 2015 we tweeted a graphic asserting that “Since 2011, 99% of Canada’s Lakes and Rivers lost their legal protection.” We stand by that statement, even after reviewing your analysis.
We believe that your finding that the NDP’s petition is “misleading” is itself misleading, for the following reasons:
The NDP petition is accurate in respect of the government’s record
As your analysis itself acknowledges, prior to 2012, an environmental assessment (at least a basic one) would have been required before construction or other works could be carried on in relation to any of Canada’s navigable waters (the 2.5 million lakes and rivers referred to by the NDP). In our view, this fact by itself validates the NDP claim (and our own) that a level of legal protection has been eliminated for navigable waters. The reason that you say that these changes are not relevant is because they occurred through the enactment of the Canadian Environmental Assessment Act 2012 (CEAA 2012), rather than through amendments to the Navigable Waters Protection Act (NWPA).
However, the NDP petition does not refer to the NWPA, but simply says that “under the Conservatives” the legal protections were eliminated. You draw the conclusion that the petition relates exclusively to the NWPA because it makes reference to the 159 rivers and lakes that retained their legal protection under that Act when it was amended in 2012. Nothing, however, in the petition actually blames the loss of protection exclusively on the changes to the NWPA; indeed, the petition appears to be referring to the whole of the government’s record, not the amendment of one statute.
It is important to understand that the changes to the NWPA did not happen in a vacuum. As you note in your article, that same year, the government repealed the Canadian Environmental Assessment Act and replaced it with the much weaker CEAA 2012, which scrapped federal environmental assessments for the vast majority of undertakings carried out in Canada. Whereas before 2012, any construction or other activity that would interfere with navigation (like culverts, bridges, dams etc) would trigger an environmental assessment on all of Canada’s lakes and rivers, under the new rules only a tiny (<0.1%) of projects and activities on waterways will be reviewed for their environmental impacts.
In your analysis you downplay the significance of the CEAA 2012 amendments, citing government statements to the effect that the Act was intended merely to eliminate “duplicative” assessments. In actual fact, the NWPA-triggered reviews most often involved “screening” assessments of smaller projects, which were unlikely to be duplicated by provincial governments, and were often the only environmental assessment that projects received.
You also suggest, quoting Amanda Winegarder, that it’s too early to tell whether there will be fewer environmental assessments of undertakings on navigable waters. Respectfully, there is already a track record to judge by. In July 2012, the month following the enactment of CEAA, 2012, nearly 3,000 environmental assessments were scrapped. In 2011 (the year before the changes), 5,597 environmental assessments were posted on the Canadian Environmental Assessment Agency’s Registry. Of those, 420 triggered an environmental assessment because they required an approval under the NWPA. In 2013 (the year following the changes), the total number of assessments was 138; 33 of which were grandfathered assessments that had been triggered under the previous Act. The numbers are clear: approximately 97.5% of projects that would have gotten a federal environmental review under CEAA do not get one now, and projects that risk interfering with navigation only receive a review if they are listed in regulations. There is no automatic review of projects on Canada’s waterways.
If the NDP claim is misleading at all, it’s because it under-states the impact of the changes on the protection of navigable waters, implying that at least the 159 waterways which are still covered under the Navigation Protection Act (NPA) have the same level of environmental protection that they had prior to these amendments. It is crucial to understand that the amendments made in 2012 were inter-related, and their collective legal effect was to (1) eliminate automatic environmental assessments for potentially harmful activities on navigable waters, and (2) eliminate additional protections for all but 159 navigable lakes and rivers. A narrow focus on the repeal of the NWPA, without appreciating the context, is itself misleading.
Changes to the Navigation Protection Act do, on their own, eliminate “protection”
There is no question that the changes to the NWPA eliminated government protection for the public right to navigate from all but 159 streams and lakes. Your analysis claims that the NDP statements are about environmental protection, but does not recognize that legal protections for the public’s right to navigate might directly and indirectly provide protection for the environmental values of those waterways. While the original purpose of the NWPA of 1882 may have been (as you put it) to “maintain the accessibility of lakes and rivers,” you might be surprised how often the early court cases about the public right of navigation (which led to the enactment of the NWPA) pertained to refuse, effluent and other concerns that would now be viewed as environmental in nature.
Over time, the NWPA became a powerful environmental tool, leading successive governments to evaluate and address the environmental impacts of culverts, dams, diversion of streams, docks and other “works” occurring in Canada’s lakes and rivers.
In stating that the sole focus of an approval under the NWPA or the NPA is to ensure “the lake or river was not obstructed,” you are adopting an overly narrow interpretation of the scope of the Act (similar to the government’s interpretation, in fact).
The name change of the Act itself clearly implies a shift away from environmental protection. Formerly the Navigable Waters Protection Act (i.e., an act to protect navigable waters), the law is now the Navigation Protection Act (i.e., an act to protect navigation).
Judges interpreting the NWPA have held that a range of factors, including environmental factors, should be considered when deciding whether to approve undertakings under the Act. The case law also supports the view that the public right to navigate cannot be entirely separated from environmental amenities, such as clean water and healthy fish stocks.
Notably, in 1992, in the landmark Friends of the Oldman River case that paved the way for environmental assessment legislation in Canada, the Supreme Court of Canada rejected the idea that only navigation-related issues could be considered under the NWPA, noting that the federal government “likely … always did take into account the environmental impact” of projects in issuing approvals under the NWPA. Environmental assessment laws, according to the court, made such consideration of environmental impacts mandatory, but the federal power to address environmental issues under the NWPA had always existed.
For these reasons, we stand by our position that reducing the scope of the NPA to 159 lakes and streams does indeed have a real impact on federal government environmental oversight, even without reference to the former link to the environmental assessment requirements.
Misuse of academic sources
In support of your view that the NWPA did not include environmental protections, you rely heavily on a paper (and associated article) by Adrienne Davidson, Emma Hodgson and Amanda Winegardner. The thrust of this important paper was to demonstrate that environmental protection of aquatic habitat has been substantially reduced under the Conservatives. Thus the paper’s abstract states (in part):
We find that 87% of environmental assessments that were triggered by the NWPA in the last 10 years were completed within 2 years and that the majority resulted in project approval. Of the assessments reviewed, 58% were on water bodies that are no longer protected under the new Navigation Protection Act, suggesting that the combination of these changes and new Acts will result in substantial reductions of environmental assessments on aquatic systems. [emphasis added]
The paper does mention that the CEAA 2012 amendments occurred prior to the enactment of the NPA, but is careful to highlight that both Acts were part of an inter-related set of amendments:
… [T]he substantive reduction in the number of water bodies requiring federal approval of projects under NPA ultimately did not reduce federal environmental oversight. That change occurred 6 months earlier, when the EA-triggering function of the NWPA was removed from Canada’s environmental legislation. Nonetheless, the overall impact for regulatory over-sight and far-reaching environmental protection remains the same; at the end of the day, the 2012 legislative changes reduced the role of federal government in environmental protection … [Emphasis]
The authors of the paper were focused on the interaction between the NWPA and environmental assessment legislation, and in this narrow context their statement about the chronology (and their recognition that both changes were part of broad set of amendments) are correct. They do not appear to have considered whether elimination of federal review of culverts, dams and other works within lakes and rivers may have independently reduced environmental protection, as we would suggest that it does.
It is true that the report’s authors, in their article summarizing the paper, do make comments suggesting that the elimination of legal protection for navigation on 99% of Canada’s lakes and rivers did not “fundamentally hollow-out Canadian environmental legislation,” but that’s only because, according to the authors, “that change had happened earlier,” with the repeal of CEAA 2012.
Your quotes from their article and paper appear to be at best somewhat selective. Moreover, we maintain our position that the NWPA did indeed offer stand-alone environmental protections.
The importance of fact checking
We have played the role of fact-checker of statements by politicians ourselves from time to time, through our Environmental Law Alert, and so we recognize the importance of what FactsCan.ca is trying to do.
However, it is absolutely critical that this type of analysis be balanced and credible. It must recognize that the relationship between Canada’s environmental assessment legislation and its laws governing the protection of its navigable waters are complex, and it is inevitable that a short petition will not capture every nuance and will, to some degree, oversimplify – and that does not make it misleading.
In our view the facts support our statement, and the NDP’s petition: the federal government reduced environmental protection of over 99% of Canada’s lakes and rivers in two ways: first, by eliminating the vast majority of environmental assessments of works that occur on navigable waters; and second, by removing the stand-alone environmental protection that flowed from the protection of navigation from all but 159 lakes and rivers and three oceans.
We hope that you will update your fact-check on this important topic accordingly.
[Update 30 September 2015 - FactsCan.ca has replied to our open letter, with an open letter of their own. While they have not changed their view that the NDP Petition was misleading, they have acknowledged and corrected some editorial errors. They have also acknowledged that the changes to environmental laws may have weakened environmental protection for almost 2.5 million rivers and lakes - although they have not specifically evaluated that claim. We thank FactsCan.ca for their careful consideration of the issues raised in our open letter.]
[Update - September 21, 2015: On 10 September, FactsCan.ca wrote acknowledging our request for a review of their "fact-check," and indicating that they would conduct a review and let us know of the results. We have not to date received such a response, and on 19 September we wrote asking for an update. In addition, we drew their attention to the fact that in 2010 Transport Canada itself stated that the Navigable Water Protection Act program "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)."]