1 Will the Canadian government “restore lost protections” for navigable waters? | West Coast Environmental Law

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Will the Canadian government “restore lost protections” for navigable waters?

11 April, 2017


The review of the Navigation Protection Act is an opportunity to strengthen legal protection for navigation and the environment on all navigable lakes and rivers. (Photo: Arlen Tees).

The Liberal Party of Canada was elected in part on the basis of a promise to restore lost environmental protections – including reviewing the “elimination of the Navigable Waters Protection Act” in order to “restore lost protections and incorporate more modern safeguards.”  On March 23rd the Parliamentary Standing Committee on Transportation reported on the results of its review, and made a series of recommendations related to Canada’s laws related to navigable waters. 

So does the Committee’s report chart a path for delivering on the government’s election promises and restoring lost legal protections for the public right of navigation? The short answer is: no.

The Standing Committee report represents a modest step back from the worst aspects of the amendments made to the Act in 2012, but fails to protect First Nations rights or to restore environmental protection that existed prior to 2012. It fails to deliver on a promise to ensure that “the protection of our freshwater resources will be an imperative.”

Restore what “lost protections”?

In 2012 the then Conservative government eliminated legal protection for the public right to navigate on over 99% of Canada’s navigable rivers and lakes, transforming the Navigable Waters Protection Act into a “Navigation Protection Act”. In separate 2012 amendments, the government also replaced the Canadian Environmental Assessment Act with a new Act that no longer required Transport Canada to consider environmental impacts when making decisions under the Navigable Waters Protection Act

The changes represented a major loss of legal protection – both for the environment and for the public right to use navigable waters. In addition to the concerns of the environmental community (including West Coast), the changes were a major focus of the Idle No More movement, which highlighted the impact the amendments had on First Nations rights. 

The Committee’s recommendations

At a conceptual level, the 2012 amendments narrowed the focus of the federal government from protecting both the public right to navigate and the environmental amenities of all navigable waters to a narrow focus on protecting large-scale commercial navigation.

At a practical level, that meant eliminating requirements to consider environmental values in decisions related to navigation, and limiting the rivers and lakes that obtained full legal protection to a small number of very large, commercially-significant rivers and lakes. Specifically, a Schedule to the new Navigation Protection Act identifies 64 rivers and 97 lakes for which the Minister of Transport will need to give approval for any work that interferes with public navigation.  For all other rivers and lakes, the public theoretically still has a public right to navigate, but there is no practical legal consequence for someone who violates that right.  

So what approach does the Transport Standing Committee take?

Unfortunately, the Standing Committee’s majority report never really grapples with the fundamental question of the purpose of the Act and its relation to environmental protection (despite environmental protection being clearly in its terms of reference.) 

Instead, the Committee misinterpreted public concern about the loss of legal protection for 99% of Canada’s navigable waters as a question about whether more rivers and lakes should have been included in the Schedule – not whether the Schedule was an appropriate approach in the first place.  By assuming that the Schedule exists, the Committee accepted that we would not restore lost legal protections for all navigable waters, but merely re-extend legal protection to some additional lakes and streams.

Thus, at least five of the 11 recommendations in the Committee’s Report relate to ensuring that the public can give input into what should be on the Schedule and providing guidance as to how to decide what streams and lakes should be added to the Schedule.  If you accept that a schedule limiting the number of lakes and rivers that should receive legal protection is appropriate, then these recommendations make sense.  But only if you accept that premise – which is in direct conflict with the government’s election promises.  There is no serious discussion as to whether the Schedule should be retained. 

As a result, the Committee pays lip service to “the special relationship that Indigenous communities have with waterways” without really providing for clear and positive legal protection for these rights.  The Committee spends more time on a commercially-focused “aqueous highway” test for which rivers and lakes should be included in the Schedule than it does in understanding the ecological value of rivers and streams.*

If you accept the Committee’s assumption that only some navigable waters are deserving of pro-active protection, then several of the Committee recommendations are an improvement on the 2012 amendments. These include:

  • An “administrative complaint mechanism” whereby Transport Canada can assist members of the public who suffer from the obstruction of navigable waters, whether on the Schedule or not.
  • Clearer, broader and more transparent rules about how to add rivers and lakes to the Schedule.
  • Requirements that project proponents provide notice of the possible impacts of their projects on navigation (to result in consultation, although it is not entirely clear by whom or to what end). 

 

Scope of the Act and other environmental laws

The review of the Navigation Protection Act is not occurring in isolation. It is one of several environmental reviews – including reviews of the Environmental Assessment Act and the Fisheries Act – that are occurring at the same time, and which are supposed to support one another.

Indeed, the Minister of Transport’s mandate letter explicitly requires him to work with the Minister of Fisheries and Oceans in reforming Canada’s laws related to Navigation – suggesting that the government contemplated a more holistic approach to protecting freshwater resources. But the Committee seems to have given only passing thought to the relationship between the reviews. In doing so they missed an opportunity to consider how the federal government’s roles in respect of navigation and inland fisheries, taken together, could create the possibility of a very proactive approach to protecting freshwater resources. 

In 1992 Canada promised in the United Nations Convention on Environment and Development that national environmental assessments would be “undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.” [Emphasis added]

Environmental assessment in Canada originated with a federal government decision under the Navigable Waters Protection Act, and until 2012 the Environmental Assessment Act and Navigable Water Protections Act together required that:

  • Transport Canada at least consider the environmental impacts of all works that would impact public navigation (known as a “screening assessment”); and
  • That major projects with an impact on navigation undergo a detailed environmental assessment (either a “comprehensive” or “review panel” assessment). 

 

The expert panel appointed to review the Canadian Environmental Assessment Act recently recommended limiting environmental assessments to a list of major projects. 

As a result, restoring environmental protections related to navigable waters would require that Transport Canada at least consider the environmental impacts of projects that affect navigation. Otherwise the result is a significant reduction in environmental protection in Canada. 

Minority Reports

We should note that both Conservative and NDP MPs issued their own dissenting reports to the majority (Liberal) report. 

The Conservatives object to the idea that any review of the 2012 amendments is required, and feel that the Liberal recommendations undermine the good work done by those amendments.

By contrast, the NDP MPs strongly recommend full restoration of the legal protection for all rivers and lakes – obviously a position with which we have some sympathy.  The NDP blasts the majority report as breaking the Liberal election promise to restore environmental protections associated with navigation protection. 

Conclusion

The Standing Committee’s report does not live up to the government of Canada’s promise – and the Committee’s mandate – to restore lost legal protections for Canada’s waterways.  It is a cautious approach, aimed more at tinkering with the worst of the 2012 amendments than offering a proactive vision of how to protect Canada’s freshwater resources. 

We hope that the government will stand by its commitments to Canadians, and provide for more proactive legal protection for navigation and the environment on all navigable lakes and rivers.

 

By Andrew Gage, Staff Counsel

 

* In my view, the Committee mischaracterizes the “aqueous highway” test. The Committee characterizes this test as a government-developed test which is different from the test for navigability developed by the courts (the “float a canoe” test) in that it is more focused on commercial use of rivers and lakes. In actual fact, Ontario’s courts developed the term “aqueous highway” and emphasized that this concept needs to be taken broadly, as including the full range of public uses and values associated with navigable waters and not only narrow commercial uses.