BORN WITH A GREY BEARD:CANADAʼS NAVIGABLE WATERS PROTECTION ACT

BY: KRYSTYN TULLY, LAKE ONTARIO WATERKEEPER

Presented at the 6th Canadian River Heritage ConferenceOttawa, OntarioJune 15, 2009

1

Introduction 3

The Evolution of the Navigable Waters Protection Act 6

The first years: 1882-2008 6

House Committee Review: February - June 2008 7

The Budget Implementation Act, 2009: January - March 2009 14

Senate Committee Review: April - June, 2009 18

Slippery slope: Why we fear(ed) the new NWPA 22

From a right to a privilege 23

Reducing accountability 25

Politicizing decisions and side-stepping science 26

“Two-tier” environmental protection 28

[Why] Is this an environmental issue? 28

The Bigger picture 33

Who is making the decisions? 33

Who are are governmentʼs “clients”? 35

What is consultation? 36

What is happening to environmental assessment? 37

The Future 39

Appendix A: Consultations 41

Works Cited 46

2

IntroductionThe simple act of dipping oneʼs paddle into the water and pulling, propelling oneself forward - such is an act that defines “Canada”.

We use the word “navigation” because we have no other word, at least not in English, that captures the full meaning of the action. To “navigate” is to be constantly moving, coming from somewhere and moving towards somewhere else. “Navigation” is an act of faith that there will be some place waiting for you when you arrive. It is the gift of living near places of wealth and of being blessed with routes by which you may travel between them.

Navigation is not a recreational pursuit. It is not an economic pursuit. It is the act of converting the gifts of oneʼs physical surroundings into pleasure, freedom, wealth, or survival. Navigation is an act of citizenship.

For two thousand years, to navigate water has been considered an act of human freedom. The ability to move from place to place and to access waterways free from tyrants, dictators, monarchs, and other powers has been one of the most important hallmarks of a just society.

The Institutes of Roman Law published in 160 AD legitimize the importance of rivers, navigation, and public access.1 The Enactments of Justinian, Book II, published in the early 6th Century AD formally stated that running water belongs to all people and guaranteed access to waterways, fishing and ports:

1. By natural law the following things belong to all men, namely: air, running water, the sea, and for this reason the shores of the sea. No one, therefore, is prohibited from approaching the seashore if he avoids damaging houses, monuments, and other structures …

2. All rivers and ports are also public, and therefore the right of fishing in a harbor or in streams is common to all.

3. The shore of the sea extends to the point attained by the highest tide in winter.

4. The public use of the banks of rivers is also subject to the Law of Nations, just as the use of the river itself is; and hence anyone has a right to secure a vessel to them, to fasten ropes to trees growing there, or to deposit any cargo thereon, just as he has to navigate the river itself; but the ownership of the same is in those whose lands are adjacent, and therefore the trees growing there belong to them.

3

1 Gaius, Gai Institutiones or Institutes of Roman Law by Gaius, 4th ed., E.A. Whitluck, ed., trans. by Edward Poste (Oxford: Clarendon Press, 1904), online: The Online Library of Liberty <http://oll.libertyfund.org/title/1154 on 2009-06-10>.

The public use of the sea-shore is also subject to the Law of Nations in like manner as that of the sea itself, and therefore any person has as good a right to build a house there in which he can take refuge, as he has to dry his nets or to draw them out of the sea. The ownership of the shores, must, however, be considered as belonging to no one, but to be subject to the same law as the sea itself and the earth or sand underneath it.2

This Roman code became the foundation for legal systems that evolved around the world, including the French Code of Napolean3 and the English common law.

Seven hundred years later, on June 15, 1215, another landmark document was created at Runnymede, England. Tired of King Johnʼs “extortionate exploitation of his feudal rights and his ruthless administration of justice”,4 the English aristocracy forced him to execute a document known as Magna Carta or “The Great Charter”. Magna Carta (re)affirmed ancient liberties and customs by water5 and guaranteed the free passage of merchants and man via waterways in accordance with “ancient and lawful customs”.6 It also pledged the removal of all fish-weirs,7 in order to facilitate navigation.8

While most of Magna Cartaʼs clauses have long since been repealed, the document itself set limits on royal authority that remain important to this day. Magna Carta formalized the idea that the king was subject to the law, not above it:

the real legacy of Magna Carta as a whole is that it limited the king's authority by establishing the crucial principle that the law was a power in its own right to which the king was subject.9

When Europeans came to North America, they brought with them the legal traditions and customs embodied in Magna Carta and the Enactments of Justinian. They were

4

2 Samuel Parsons Scott, ed., The Civil Law: Including the Twelve Tables, the Institutes of Gaius, the Rules of Ulpian, the Opinions of Paulus, the Enactments of Justinian, and the Constitutions (Cincinnati: The Central Trust Company, 1932), online: <http://webu2.upmf-grenoble.fr/Haiti/Cours/Ak/Anglica/just2_Scott.htm>.

3 H.S. Boutell, “The Seventh Centenary of the Magna Carta” (1914) 3:2 Geo.L.J. 49, online: <http://scholar.google.ca/scholar?hl=en&lr=&q=info:dowxeth9aHYJ:scholar.google.com/&output=viewport&pg=1>.

4 “Treasures in Full: Magna Carta [Treasures], online: The British Library <http://www.bl.uk/treasures/magnacarta/basics/basics.html>.

5 Magna Carta, s.13.

6 Ibid. at ss.41, 42.

7 Ibid. at s.33.

8 Treasures, supra note 4.

9 Ibid.

complemented by First Nationsʼ laws and traditions established here, on this continent.10 As the Assembly of First Nations notes, the right to navigation is also one of the longest standing rights in First Nationsʼ laws:

In First Nationsʼ laws, water is understood as the basis for life and social organization. Maintaining social organization includes maintaining navigational mobility … First Nations identify rivers as the landʼs arteries. As such, they are, and always have been, essential to the ongoing survival and well-being of First Nations. Rights to water and unobstructed waterways are essential to sustaining life and society and are a prerequisite to the enjoyment of virtually every other Aboriginal and Treaty right.11

This right flows from pre-confederation customs, as well as treaties between First Nations and European settlers, the Constitution, and jurisprudence. The Assembly of First Nations explains:

First Nationsʼ rights to water stem from Aboriginal rights and from the Pre- confederation, numbered and modern Treaties. All aboriginal title lands (including reserves) carry paramount rights to the use of water feeding and bordering the lands. Aboriginal Rights are based on First Nationsʼ traditional use and occupancy of land and include rights to land, water, resources, culture, language, a livelihood and self-government. The treaties provide additional clarity on specific rights. Hunting, fishing, harvesting and trapping rights are included in the treaties. One specific example is in Treaties 5 and 7, where settlers are granted free navigation of lakes and rivers and use of shorelines in the First Nationsʼ waterways, thus granting priority rights to First Nations over settlers.12

With the complementary protections offered by European and First Nations legal traditions, it is clear that the right to navigate has always been part of the fabric of Canadian history.

It has been roughly 500 years since European and First Nations customs met, 800 years since Magna Carta and 2,000 years since Roman Times; yet, notions of navigation, access to waterways, checks on power, and the rights of all people are still relevant. Collectively, they are the foundation of Canadaʼs legal system. They influence both legislators and justice officials to this day. For this reason, we cannot discuss

5

10 Unless otherwise specified, terms such as “Canadian law” and “laws” used throughout this paper refer to both laws rooted in European tradition and First Nations law. Similarly, terms such as “Canadaʼs legal system” generally include First Nations, the federal government, and provincial governments.

11 Assembly of First Nations, Brief on changes to the Navigable Waters Protection Act (NWPA) to the Senate Standing Committee on Energy, the Environment, and Natural Resources (May 12, 2009) [AFN] at 6.

12 Ibid. at 10.

issues such as navigation without understanding the history of thought, achievement, and struggle that came before us.

Yet that is precisely what occurred within Canadaʼs federal government between February 2008 and June 2009. One of the countryʼs oldest laws, the Navigable Waters Protection Act,13 was deconstructed and re-written in a manner that demonstrated profound ignorance of our nationʼs history and culture. The consequences may forever alter our waterways and our national discourse.

This paper examines the process by which the Navigable Waters Protection Act was amended, the reasons and trends behind the changes, and some of the flaws with the process. The paper suggests that fanciful notions of “navigation” and “rights” still matter in todayʼs Canada. It describes how our collective respect and understanding for the act of navigation has crumbled and how, in our hurry to “modernize” our laws, our Parliamentarians have laid the groundwork for two-tier justice and the unnecessary surrender of wealth.

The paper describes how, unless we make wiser decisions going forward, Canadians will have ceased to dip our paddles into the water, pulling towards a place worth being.

The Evolution of the Navigable Waters Protection ActThe first years: 1882-2008

The Navigable Waters Protection Act is one of Canadaʼs oldest laws. It was not a revolutionary law; instead, it drew from tradition, principles of common law, Magna Carta, and the Code of Justinian that preceded it. In this sense, the NWPA was “born with a grey beard”.14

6

13 Navigable Waters Protection Act, R.S.C. 1985, c. N-22 [NWPA].

14 This was how author Samuel Johnson described Magna Carta, which also drew from principles and codes that preceded it. See Bill Shuter, “Tradition as Rereading” in David Galef, ed., Second Thoughts: A Focus on Rereading (Detroit: Wayne State University Press, 1998) 75 at 81, online: Google Books <http://books.google.com/books?id=Q6o4FyTAkoUC&pg=PA81&lpg=PA81&dq=%22born+with+a+grey+beard%22&source=bl&ots=FLnZEjxPqe&sig=9pHlGmDS3aGdpqsHoOd5nPfLcT8&hl=en&ei=y84iSpTOCuCptgeI3vG2Bg&sa=X&oi=book_result&ct=result&resnum=2>.

The NWPA received Royal Assent on the 17th of May, 1882;15 the original title was An Act respecting Bridges over navigable waters, constructed under the authority of Provincial Acts. In essence, the legislation ensured that all bridges that could interfere with navigation on a waterway must be approved by the highest level of the Canadian government: the Governor General in council. The Act was modified just three times between 1882 and 2008,16 when new projects were added to the list of those requiring federal approvals (including dams, wharves, and causeways).

The creation of a federal statute offered an interesting twist to the ancient tradition of the right to navigate. On the one hand, the statuteʼs purpose was to create a regulatory process that would facilitate development projects interfering with navigation. In this sense, the very existence of the NWPA could be seen as a weakening of the pure right to navigate. On the other hand, the act suggests that the provinces alone do not have the authority to interfere with navigation, and that only the highest level of government could approve a project interfering with navigation. In this sense, the creation of the NWPA affirmed that the issue is one of national import.

In Canada, as elsewhere around the world, navigation rights were continuously re-affirmed through legal actions, negotiations, and the passage of complementary legislation. Here at home, the Canadian Environmental Assessment Act17 strengthened procedural rights by guaranteeing a public review of all projects that may interfere with navigation, as well as all bridges, booms, causeways and dams. First Nationsʼ rights were also clarified and re-stated, promoting consultation and accommodation on matters such as navigation.18

For one century, the text of the NWPA itself remained substantially unchanged. Then, in 2008, 126 years after the legislation received Royal Assent, the House of Commonsʼ Standing Committee on Transport, Infrastructure and Communities began hearing witnesses regarding new navigation protection legislation to replace the NWPA. The Navigable Waters Protection Act, claimed the government, had not been updated in a century and was in desperate need of “modernization”.

House Committee Review: February - June 2008

7

15 “An Act respecting Bridges over navigable waters, constructed under the authority of Provincial Acts” in Acts of Canada, Fourth Session, Fourth Parliament, 45 Victoria, 1882 at 187, online: Google Books <http://books.google.com/books?id=rAEvAAAAIAAJ&pg=RA1-PA187&lpg=RA1-PA187&dq=%22An+Act+respecting+Bridges+over+Navigable+Waters%22&source=bl&ots=gz-7ApMWHf&sig=d4rGc5LgzB5mQg924GILr1PSUH4&hl=en&ei=GaohStygOsSGtgep3pC_Bg&sa=X&oi=book_result&ct=result&resnum=5>.

16 Transport Canada, (March 8, 2007). The Navigable Waters Protection Act Regulatory Inefficiency - A Prime Example. Presentation to NRCan Regulatory Efficiency Workshop. Slideshow: slide 3.

17 Canadian Environmental Assessment Act, R.S.C. 1992, c. 37, s.2(1) [CEAA].

18 AFN, supra note 11 at 10 - 11.

On February 12, 2008, Transport Canada officials first appeared before the House of Commonsʼ Standing Committee on Transport, Infrastructure and Communities (SCOTIC). They described the process by which an individual or corporation obtains permission from the federal government to develop on or near water in a way that may interfere with navigation: Transport Canada receives notice of a project, either from another government department or from the developer. Transport Canada assesses the waterway, in order to determine if it is “navigable”.19 If the waterway is navigable, and if the project may interfere with navigation, an environmental assessment is required. If the project is a bridge, boom, causeway or dam, an environmental assessment is always required. If the project is unlikely to interfere with navigation, no assessment is required and the approval is granted.20

According to Transport Canada officials, delays generally accumulated during the process of trying to establish whether or not a waterway is navigable (and therefore protected) and during the environmental assessment process. They also stated that the department receives approximately 5,000 applications each year and that each officer has “in excess of 100 files they must be working on each year.”21 The backlog of pending approvals was said to be “impeding both economic growth and the actual construction of transportation infrastructure, which in turn is putting the government's “Building Canada” plan at risk.”22 These delays are generally referred to by most witnesses and officials as the motivating reason for re-writing the NWPA.

In that first appearance before the SCOTIC, Transport Canada spokespeople recommended extensive public consultation, stating the following:

“The Navigation Protection Act23 impacts a wide range of Canadians and areas … A report on the consultation efforts, containing recommendations to meet the goals I have just outlined, would be used as a basis to draft new navigation protection

8

19 “Navigable” was defined generally as any waterway in which a canoe or kayak could be floated. See House of Commons, Standing Committee on Transport, Infrastructure and Communities, 39th Parliament, 2nd Session (12 February 2008) at 1205 (David Osbaldeston) [SCOTIC, 12 February 2008], online: Parliament of Canada <http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3274882&Language=E&Mode=1&Parl=39&Ses=2>.

20 Ibid. at 1200. Note: A very detailed description of this process is also available. See Standing Senate Committee on Energy, the Environment and Natural Resources, Report Addressing Bill C-10, Navigable Waters Protection Act (June 2009) [Senate, SCEENR Report], online: http://www.parl.gc.ca/40/2/parlbus/commbus/senate/com-e/enrg-e/rep-e/rep09jun09-e.pdf.

21 Ibid. at 1145 (David Osbaldeston).

22 Ibid. at 1115 (Marc Grégoire).

23 The proposed new title of the Navigable Waters Protection Act. This issue was not considered to be “low hanging fruit” by the SCOTIC and the proposal to change the name of the Act was not considered further.

legislation … If the committee does decide to hold consultations, it can count on the support of Transport Canada experts.”24

When questioned about the proposed cross-country consultations by Mr. Mario Laframboise (Argenteuil—Papineau—Mirabel, BQ), the Assistant Deputy Minister (ADM) stated

“Of course we can always draft and table a bill, but traditionally extensive consultations are held in the case of each piece of draft legislation … Traditionally that is how we work. For example, the Aeronautics Act, one of the last pieces of legislation you examined, was the subject of extensive consultations with over 700 groups across Canada … If you did decide to hold cross-country consultations, as we have seen in the case of different bills recently tabled, then we think you may have to stop in at least thirty different locations in Canada to consult with groups about the bill. That may be too much for the committee, but it is not my call.”25

Further discussion between Mr. Brian Jean (Fort McMurray—Athabasca, CPC) and the ADM clarified the Ministerʼs expectations for the consultation timeline:

Mr. Brian Jean:I have one question, in essence, and I would prefer to have answers in writing if they exist. It seems to me that it could take the committee two or three years to do a good job on this particular act. It just seems like a tremendous, amazing, huge task. It's 100-year-old or older legislation, and it could take us that long to do the job right, in my estimation.

Mr. Marc Grégoire:    The minister was kind of hoping you would give him a report by June.

Mr. Brian Jean:    That's nice. I don't know if there are that many hours in the day. 26

The SCOTIC consultation process was brief, and the Ministerʼs June deadline was met. The list of those parties that submitted written briefs and appeared before the committee is appended to the June 2008 report of the Standing Committee on Transport Infrastructure and Communities: witnesses appeared 21 times, representing seven organizations or departments; briefs were submitted by 27 organizations and one

9

24 SCOTIC, 12 February 2008, supra note 19 at 1125 (Marc Grégoire).

25 SCOTIC, 12 February 2008, supra note 19.

26 Ibid.

individual27. On that list, only three briefs and one appearance came from members of the voluntary sector: Lake Ontario Waterkeeper (appearance and brief), Canoe Kayak Nova Scotia, and Les Amis de la Rivière Kipawa. As a result, the viewpoints shared with the Committee skewed towards the perspective of stakeholders with interests development on or near navigable waters. These included the Canadian Construction Association, the Western Canada Roadbuilders & Heavy Construction Association, as well as various provincial and municipal development departments.

Throughout the SCOTIC hearings, testimony and questions focused on the perspective of the regulated stakeholders. These witnesses pointed to the administrative “burden” of assessing navigability and conducting environmental assessments, particularly in areas perceived as remote and for projects perceived as minor. Words such as “modernizing” and “streamlining” were used frequently.28 For example:

Mr. Jeff Watson:Are there any other changes you'd want to make to the act? We're looking to modernize the act-- … I'm asking whether there are any changes that you would propose. Your brief responds to the seven recommendations of Transport Canada. I don't necessarily see that what your brief proposes will modernize the act, only in the narrow cases of inspection and enforcement.

    Are there any other ideas you have to modernize the act, beyond just responding to the seven recommendations? How would you foresee modernizing it? Or do you want to leave this the way it is essentially?29 (emphasis added)

These terms generally translate into the elimination of some or all government review, with a tendency towards self-regulation. For example, one Transport Canada witness suggested that the NWPA is flawed because it does not allow industry to regulate itself:

“There are associations such as the forestry industry, the pipeline industry--they're out there self-regulating themselves in certain areas, doing their own evaluations on behalf of other regulating bodies on a regular basis. We'd be willing, and

10

27 House of Commons, “Consideration of Proposed Amendments to the Navigable Waters Protection Act”, Report of the Standing Committee on Transport, Infrastructure and Communities, by Mervin Tweed, MP, Chair, 39th Parliament, 2nd Session (June 2008) [SCOTIC Report], online: Parliament of Canada <http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3566517&Language=E&Mode=1&Parl=39&Ses=2>.

28 See e.g. SCOTIC, 12 February 2008, supra note 19 at 1115 (Marc Grégoire) (“In keeping with the cabinet directive on streamlining regulations, we need to ensure in the new act that our departmental resources are focused on those waters and works that require oversight and provide real value to Canadians”).

29 House of Commons, Standing Committee on Transport, Infrastructure and Communities, 39th Parliament, 2nd Session (29 May 2008), online: Parliament of Canada <http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3532150&Language=E&Mode=1&Parl=39&Ses=2>.

they've told us, to take some of that on, but we just don't have the mechanism to do it within our legislation.”30

Complaints about the antiquity of the legislation, however, were inconsistent. A Transport Canada witness in one moment criticized the NWPA for being outdated,31 while another Transport Canada witness went on to describe how the courtʼs modern interpretation of the legislation was the problem:

The Chair:I think the simple definition, if I understood correctly from the last meeting, was that if you can float a canoe on it, it's navigable water.

Mr. Marc Grégoire:That's the decision we have now, imposed by courts. But we think it's too restrictive.32

The ADMʼs choice of words - “too restrictive” - is illuminating. The actual court definition of navigable is broader than the definition preferred by Transport Canada. When the ADM says “restrictive”, he refers not to restrictions on navigation, but restrictions on development. Whether the NWPA is too antiquated or too modern, the consistent

11

30 SCOTIC, 12 February 2008, supra note 19 at 1200 (David Osbaldeston).

31 Ibid. at 1235 (David Osbaldeston) (“The act of 1882 didn't know anything about smart regulation or about streamlining regulations. It was looking after rivers as highways and only for commercial purposes”).

32 House of Commons, Standing Committee on Transport, Infrastructure and Communities, 39th Parliament, 2nd Session (28 February 2008) [SCOTIC, 28 February 2008] at 1255, online: Parliament of Canada <http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3312419&Language=E&Mode=1&Parl=39&Ses=2>.

theme is that the regulatory process interferes with development by industries such as aquaculture33 and forestry,34 as well as government-sponsored infrastructure projects.

Throughout the SCOTIC hearing process, only one solution - amending the legislation - was considered. There was some debate as to whether the amendments should focus on “low hanging fruit”35 or to be more thorough. In the end, the Committee and Transport Canada officials proceeded with “low-hanging fruit”. At one point during the first session, Mr. Brian Masse (Windsor West, NDP) did ask a Transport Canada witness whether hiring more staff - even for the short-term - would address administrative challenges. The witness replied:

“For purposes of hiring, to bring on the numbers of staff we would need to deal with this load would take us a year or a year and a half. We don't need to meet that load if we change the legislation. We don't need to have excess staff on board once the legislation is changed. We need to have a reasonable complement to do what Canadians expect and to deal with the new responsibilities that the act would bring to us.”36

Increased staffing was never proposed or considered in any meaningful way during the rest of the SCOTIC hearing process.

The focus on the interests of vested stakeholders reflects the limited number of witnesses and the homogeneity of their issues. It is possible that, had more extensive

12

33 SCOTIC, 12 February 2008, supra note 19 at 1115 (Marc Grégoire) (“Significant delays have been experienced in the approval of new aquaculture sites”).

34 Ibid. at 1255 (David Osbaldeston) (“Suppose MacMillan Bloedel wants to go into a piece of New Brunswick. They're going to cut here this year, and it's away out in the boonies someplace. It's three hours from anybody. In the past they used to come in and say they were going to clear-cut up here, and were there any navigational concerns? They'd show us their boundaries. We'd take a quick look at it and we'd say no--just go. They'd go in and they'd do their thing with their temporary bridges. They'd pull whatever they had out and they'd move on for the next year. That's one company. Then came the introduction of ISO standards. ISO certifications require all these companies, in order to maintain their certification, to prove they've got all their required approvals, permits, and certifications in place and to produce them. All of a sudden we start having these guys show up with 3,000 applications in hand, saying now they need us to produce 3,000 pieces of paper for them on waterways that for the most part would be covered under these minor waterways that nobody's ever going to put a canoe or a kayak on. In one case we went with the Forest Products Association of Canada by helicopter two hours north of Prince Albert and landed on the bridge. I looked under the bridge and I said, “The water's absolutely navigable, but other than your lumber trucks, who's up here?” There is nobody around for 300 to 400 miles”).

35 Senate, Standing Committee on Energy, the Environment and Natural Resources, 40th Parliament, 2nd Session (23 April 2009) [Senate, SCEENR, 23 April 2009] at (Mr. David Osbladeston), online: Parliament of Canada <http://www.parl.gc.ca/40/2/parlbus/commbus/senate/Com-e/enrg-e/04ev-e.htm?Language=E&Parl=40&Ses=2&comm_id=5>.

36 SCOTIC, 12 February 2008, supra note 19 at 1155 (David Osbaldeston).

consultations been undertaken, the tone and the analysis would have shifted. As Mr. Mario Laframboise (Argenteuil—Papineau—Mirabel, BQ) noted in the first hearing, cross-country consultations may have attracted a different group of witnesses:

However, given that you reject anywhere from 1,000 to 2,000 applications each year, environmental groups will be asking me to intervene on their behalf. I wonder if you really want to stir everything up. I do not have a problem with consulting people. Really, I would be happy to do that. But seriously, there are groups listed here — associations like the Transportation Association of Canada — that could send representatives here to Ottawa. If we decide to travel, then we will need to hear from everyone, including those who asked you to intervene. Often these are environmental groups.37

After hearing (orally and in writing) from 27 organizations, including the three NGOs, the SCOTIC wrapped up hearings on June 10, 2008. The Committee Chair submitted a report to Parliament on June 12, 2008. The report reflected the submissions of Transport Canada officials, recommending the following:

๏ Exclude “minor waters” from the NWPA๏ Define “navigable water”๏ Exclude “minor works” from the NWPA๏ Remove the four “named” works from the NWPA (thereby eliminating mandatory review of bridges, booms, causeways and dams)๏ Ensure that other environmental assessment triggers are not done away with or impeded๏ Increase fines๏ Take into account international obligations regarding removal of wrecks and derelict vessels๏ Define inspection powers๏ Include a five-year review clause38

The report also pledged to conduct public consultations in the future:

We would also note that this is the first stage in our process dealing with amendments to the NWPA. Once we receive the governmentʼs proposed amendments we will be undertaking further consultations on this piece of legislation.39

Neither the SCOTIC nor Transport Canada ever again engaged in formal consultation on the NWPA. Exactly one year later, on June 11, 2009, the Standing Senate Committee on Energy, the Environment, and Natural Resources is to submit its own

13

37 SCOTIC, 12 February 2008, supra note 19 at 1140.

38 SCOTIC Report, supra note 27.

39 Ibid. at 5.

report on the NWPA.40 This time, the Committee report will examine how, through the Budget Implementation Act of 2009, sweeping changes have already been made to the NWPA.

The Budget Implementation Act, 2009: January - March 2009

How did we get from “this is the first stage” and “we will be undertaking further consultations” to a dramatically new NWPA in just one short year? What happened to public consultation? And what could it all mean for Canadaʼs rivers?

The first deferment of public consultation occurred when an election was called in September, 2008. From September 7 through October 14, no formal consultation occurred because of the federal election. The second deferment of public consultation occurred when Parliament was prorogued from December 4, 2008 through January 26, 2009.41 A new budget was introduced on January 27, 2009 as soon as Parliament resumed. The budget bill included amendments to the NWPA. Transport Canada and SCOTIC did not consult on these revisions to the Act because, being a budget bill, the matter was now the responsibility of the Department of Finance. Furthermore, budget bills are traditionally accompanied by greater confidentiality and secrecy than other bills.42

Part 7 of the Budget Implementation Act, 2009 contained dozens of amendments to the NWPA. Under the new Act, classes of “minor” works and “minor” waterways could be created by Ministerial order; similarly, the Minister is granted power to alter remove works at any time. These minor works and works on minor waters would be exempt from the environmental assessment process. The orders themselves would be exempt from public scrutiny, including parliamentary review and pre-publication in the Canada Gazette. The new NWPA also suggests regulation- and order-making authority to Cabinet. This could further reduce public scrutiny, as decisions made at the Cabinet level are traditionally exempted from requests made under the Access to Information Act.

Because the Budget Implementation Act, 2009 was a confidence bill, a vote against the NWPA amendments would be a vote against the government itself. If the bill was defeated, the government would also be defeated. These unique circumstances stifled meaningful debate about the legislation. This politically-charged atmosphere dominated

14

40 Senate, Debates of the Senate (Hansard), 146:19, 40th Parliament, 2nd Session (12 March 2009) [Senate Debates, 12 March 2009] at 1405 (Hon. James Cowen), online: Parliament of Canada <http://www.parl.gc.ca/40/2/parlbus/chambus/senate/deb-e/019db_2009-03-12-E.htm?Language=E&Parl=40&Ses=2>.

41 Personal Communication from David Osbaldeston to members of the Canadian Environmental Network (3 March 2009).

42 Ibid.

the House of Commonsʼ Standing Committee on Financeʼs brief, two-day review of the Budget Implementation Act. On February 23, 2009, for one-and-a-half hours, the committee heard from the Department of Transport, four non-governmental organizations, and one individual regarding the new NWPA. A Department of Transport official concluded his opening remarks with the following statement:

In closing, I'd like to say that a modernized act will help us do a much more effective job of protecting the public interest in navigable waters, while at the same time expediting the infrastructure growth and redevelopment required today. Without them, we will continue to experience delays in approval of critical infrastructure projects. Our desired result is to stimulate the economy and remove the unnecessary regulatory burden while continuing to provide the due diligence with respect to the administration of this act.43

Mr. Thomas Mulcair, NDP later responded with the following:

… I must start off by saying that I have the greatest respect for the civil service. Having spent more than 30 years in the public service, half of it as a civil servant, including being chairman of a large regulatory agency, and half of it as an elected official, I can say that I know the difference between the two. I don't think … that you know the difference between the two, and I say that with respect.

If you enjoy the game of politics, have the courage to put your face on the telephone poles and get yourself elected. Tonight you came into this committee and did something that none of us has ever seen before. I have never, in over 30 years, seen a civil servant come before a committee and deliver with such a purely partisan mind. When you have the temerity to come before us and say that there's nothing in here that removes environmental protection, you're simply not telling the truth. It is not true that there's a tiered approval process in here. It's a complete change in the whole regulatory structure. All the enabling provisions under this statute will be changed to give … pure discretion here in Ottawa.

Now, I don't doubt your good intentions, but I am telling you that what you told this committee about the effect of this legislation is not true.

Coming here and pleading the backlog of cases as an excuse to go on and on about the more flexible process is a purely partisan political argument and has nothing to do with the facts. Saying that you're here to streamline is a purely partisan political argument that has nothing to do with the facts. Saying that financial opportunities are being lost is their line. They're elected. They put their pictures up on telephone poles and they were elected to do a partisan political job. You didn't.

15

43 House of Commons, Standing Committee on Finance, 40th Parliament, 2nd Session (23 February 2009) at 1935 (David Osbaldeston), online: Parliament of Canada <http://www2.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=40&Ses=2&DocId=3690072&File=0>.

…

I don't agree with the fact that an officer of the civil service—un grand comis de l'État, as we would say in French—should be used to come in here and spin a purely partisan political line. I don't agree with that at all.

The following morning, during day two of the FINA review, Mr. Mulcair moved that each clause in Part 7 of the Budget Implementation Act be repealed. The committee defeated him on each vote, and by mid-day, the Act had passed committee review and been sent back to the House of Commons.44 By March 4, 2009, the Act had passed Third Reading in the House of Commons and First Reading in the Senate.

The Senateʼs sober second thought: March 2009

When the Budget Implementation Act, 2009 reached the Senate, political tension escalated. Upset that the Senate was expected to approve the budget bill quickly, Senators from various parties rebelled. The Liberal chair of the National Finance Committee made headlines on March 2, 2009 when he expressed his unwillingness to rush the bill through review:

“The bill amends 42 statutes, itʼs over 500 pages long. The Senate will not deal with that in two or three days. We will not,” said Liberal New Brunswick Senator Joseph Day, who chairs the National Finance Committee.…“Weʼve got to do our job. What do you think those people who are affected by the Competition Act, that are affected by the Navigable Waters Act, that are affected by womenʼs equity pay, what do you think they would feel about the Senate if we just said, ʻOh weʼve just got to be the other side of the coin of the House of Commons and rubber stamp this thing? Why are we here?” he said. “Weʼre looking at it legally and regionally and the impact on minorities. Thatʼs our job.”45

Another Liberal Senator, Tommy Banks, expressed his concerns that rushing through a budget bill with amendments to acts such as the NWPA attached to it would be unwise. He called it a “disembowelling” of Parliament and suggested that the Senator will not know what the amendments are, what they do, or what their consequences may be.46

16

44 House of Commons, Standing Committee on Finance, 40th Parliament, 2nd Session, Meeting 10 (24 February 2009), online: Parliament of Canada <http://www2.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=40&Ses=2&DocId=3704561&File=0>.

45 Bea Vongdouangchanh “Senate wonʼt rubber stamp $258.6-billion budget, say Liberals” The Hill Times (2 March 2009), online: Lake Ontario Waterkeeper <http://www.waterkeeper.ca/2009/03/02/senate-wont-rubber-stamp-2586-billion-budget-say-liberals/>.

46 Senate, Debates of the Senate (Hansard), 146:16, 40th Parliament, 2nd Session (5 March 2009) at 1630 (Hon. Tommy Banks), online: Parliament of Canada <http://www.parl.gc.ca/40/2/parlbus/chambus/senate/DEB-E/016db_2009-03-05-e.htm?Language=E&Parl=40&Ses=2#45>.

Similarly, Senator Lowell Murray, appointed by the Progressive Conservative Party, argued that the public had a right to be consulted:

With regard to the proposed amendments to the Navigable Waters Protection Act, honourable senators have had hundreds of e-mails from Canadians concerned about access to waterways that they believe they are about to lose. We have also heard from organizations representing most of the major watersheds from the Fraser in British Columbia to the Petitcodiac in New Brunswick. I do not pretend and I do not think many of us can pretend to be able now to judge the force or validity of their arguments. What I do say is that they have a right to be heard.

Some Hon. Senators: Hear, hear!

Senator Murray: In the interests of sound public policy and, indeed, in the interests of the democratic values we espouse, we have a duty to hear them. Their concerns about adverse legislation should not be brushed aside by sneak attack, which is what happens when extraneous measures are forced through in an omnibus budget implementation bill.47

The response to these concerns was consistently the same: the economic crisis facing the country required haste. Conservative Senator Consiglio Di Nino put it this way:

Let me begin by putting the need for quick passage of this bill into context. As we all know, Canada is in the midst of a severe global recession — a recession that no one accurately predicted; a recession that requires unprecedented, extraordinary action to be taken if we are to reduce the negative impact, indeed the pain, of this global crisis.48

For a while, it appeared as though the Senate might split the budget bill into two parts. The first part would include those sections directly related to fiscal measures. The second part would include the NWPA amendments, as well as other controversial amendments relating to competition, employment compensation and other matters. This approach would allow the Senate and the House to pass the desired economic stimulus measures quickly, while ensuring more thorough scrutiny of the more controversial parts. At the same time, it would avoid triggering a vote of non-confidence.

After two weeks, the resistance ended when then-Interim Leader of the Liberal Party Michael Ignatieff “reversed course abruptly” and urged Senators to rush through the

17

47 Ibid. at 1540.

48 Ibid. at 1435 (Hon. Consiglio Di Nino).

budget bill. (He cited concerns about delays to Employment Insurance benefits.)49 The budget bill was never split into two. The Senate did, however, pass a motion authorizing the Standing Senate Committee on Energy, the Environment, and Natural Resources to examine and report on “those elements dealing with the Navigable Waters Protection Act.”50

On March 12, 2009, An Act to implement certain provisions of the budget tabled in Parliament on January 27, 2009 and related fiscal measures (a.k.a., the Budget Implementation Act, 2009) passed the Senate. It received Royal Assent the same day. The new NWPA was born.

Senate Committee Review: April - June, 2009

Between April 23, 2009 and June 4, 2009, the Senate Standing Committee on Energy, the Environment and Natural Resources held nine hearings. They heard from 32 people representing 19 organizations, departments or individuals. Nine of the organizations that appeared were from environmental and paddling communities, three from the First Nations, two from the federal government, two from industry, one from provincial government, one from municipalities, and one individual.

The process was unusual in that the Budget Implementation Act had been passed, so the purpose of the review was not to inform a specific vote or decision. As Senator Elaine McCoy (Alberta) so neatly put it, “the bad news is: we have no executive power and the Senate cannot make it right by ourselves.”51 The Committeeʼs job was to “examine and report” on the NWPA amendments contained in the budget bill. The general aim was described by the committee chair at its first meeting:

While many of the amendments to the act appear to be attempts to modernize and update the legislation, there are apparently several substantive changes to its provisions in addition.

We are pleased to begin our series of meetings on this subject. We intend to drill down and get the full story.52

For the most part, the information presented by Transport Canada was similar to that presented at the FINA and SCOTIC hearings. When concerns were raised about

18

49 “Liberal, Conservative senators unite to pass budget bill” The Canadian Press (13 March 2009), online: Lake Ontario Waterkeeper <http://www.waterkeeper.ca/2009/03/13/liberal-conservative-senators-unite-to-pass-budget-bill/>.

50 Senate Debates, 12 March 2009, supra note 40 at 1405. The Committee was instructed to present its final report no later than June 11, 2009.

51 Hon. Senator Elaine McCoy, “NWPA: Reporting Out”, Hullabaloos (12 June 2009), online: http://www.albertasenator.ca/hullabaloos/printerfriendly.php?article=411.

52 Senate, SCEENR, 23 April 2009, supra note 35 (Hon. W. David Angus).

inadequate consultation, it was suggested by different people over the course of the hearings (witnesses, government officials and Senators) that consultation occurred when the SCOTIC prepared its 2008 report and/or that consultation was impossible because of the economic crisis and the nature of the budget process. In response to concerns about environmental assessments, Transport Canada representatives attempted to reassure Senators that environmental assessments for major projects would still occur (if not conducted by Transport Canada then conducted by other federal or provincial departments). Transport Canada officials also assured the Senators that the publicʼs right to navigation would still be protected under the NWPA.53 Representatives from the not-for-profit sector generally disputed each of these assertions.

The tone of the hearings shifted at the Senate committee. With the budget bill passed, proponents of the new NWPA defended the changes. Others expressed concerns about the substance of the changes or the about the process by which the NWPA was re-written. As Senator Murray suggested (above), it was entirely possible for one to be concerned about the process, while still finding that the new NWPA is a reasonable document.

Transport Canada officials frequently referred to the economic crisis, both to explain the need for the new NWPA and to justify the rushed process. At a hearing on May 7, 2009, however, it was established that the changes to the NWPA had been in the works for quite some time:

Senator Banks: I have one further question, Chair. Ms. Tully, I want to make sure I understood what you said because this is very important to me. You said that the proposed changes in the Navigable Waters Protection Act were in the minds of people before the economic crisis became evident.

Ms. Tully: Yes.

Senator Banks: Would I infer that the insistence of some folks that the urgent necessity of these changes are due to economic stimulus is sophistry?

Ms. Tully: I would say it certainly is confusing and there is conflicting information. We have an access to information request to try to get the background materials, but we are having a hard time getting those. We do have some slideshow presentation and some materials from the Department of Transportation dating back to 2007, at least. When I appeared before the Transport Committee a year ago, it was at the invitation of the committee and they had a memo that said – I cannot remember – it may be seven different issues that they were looking at.

Therefore, what the Navigable Waters Protection Act looks like now is virtually identical to what they were proposing to do a year ago.

19

53 See e.g. Ibid. (Donald Roussel, Director General, Marine Safety, Transport Canada).

Senator Banks: Nobody knew there was an economic crisis coming a year ago, right?

Ms. Tully: Not to my knowledge.54

At a later meeting, the Committee chair acknowledged that the NWPA amendments had been part of a longer, fifteen-year process.55

Representatives of industry came forward to express their concerns that the new NWPA still failed to provide the kind of regulatory clarity that the sought. They generally support the kind of “modernized” and “streamlined” regulatory approach that would minimize “red-tape” and facilitate development in and around waterways; the solution to their concerns, however, may not have been exactly what emerged under the new NWPA. Ron Kruhlak appeared before the committee on May 26, 2009. Mr Kruhlak is an Alberta-based lawyer who represents industry on energy, mining, and water applications:

Senator McCoy: … To follow up on some of these questions, in terms of your experience dealing with the Navigable Waters Protection Program and approvals needed thereunder, one of the outcomes I hear you wish for is knowing how long it will take to get an approval. One of my first questions is: In the new act, is there anything there that gives you that assurance?

Mr. Kruhlak: Not that I have seen, senator.

Senator McCoy: Another of your criteria for an effective regulatory process, it seems to me, was some degree of certainty, which, certainly when I was practicing or administering regulatory law, it was knowing what criteria were going to be applied in coming to a decision for an approval.

Is there anything in the new act that gives you any indication of what criteria there will be applied by the Navigable Waters Protection Program in coming to a decision as to whether you will get approvals?

Mr. Kruhlak: I do not think the amendments go that far to give you that predictability. Some of the consultants I have worked with have said: If you just told me that for this type of crossing, these are the ingredients you would expect to see for an appropriate crossing, then we will design a project that meets those clearly off the start.

20

54 Senate, SCEENR, 23 April 2009, supra note 35.

55 Senate, Standing Committee on Energy, the Environment and Natural Resources (26 May 2009) [Senate, SCEENR, 26 May 2009], online: Parliament of Canada <http://www.parl.gc.ca/40/2/parlbus/commbus/senate/Com-e/enrg-e/47247-e.htm?Language=E&Parl=40&Ses=2&comm_id=5>.

Again, there may be some technical discussions that the department offers. With the actual applicants, the consultants who put that together, it tends to be more technical than legal, but I have not seen that type of clear guideline.

Senator McCoy: That testimony corroborates the testimony of one of those technical-type people, and that was Mr. Middleton from Alberta Transportation.

Mr. Kruhlakʼs statements highlight one of the themes that ran through the NWPA amendment process, from 2008 through 2009: Is this an administrative problem, a legislative problem, or some combination of both? By neglecting to examine this one year earlier, during the SCOTIC hearings, decision-makers failed to identify a rational list of solutions to the problems identified by Transport Canada, industry stakeholders, and the ordinary citizen. What is more, the hurried and limited consultation that did occur failed to resolve industryʼs concerns and placed Transport Canada officials on the defensive. Meanwhile, the public at large is concerned about the substance of the changes, as well as the hurried secrecy of the amendment process. This is the story that the Senate Standing Committee on Energy, the Environment and Natural Resources heard.

It is not the story that one gleans from the Senate Committeeʼs final report, released June 11, 2009.56 There were two challenges with the Senate committee structure that may have impacted the substance of its report. First, due to the limited number of hearing dates, not every individual or organization who wished to participate had an opportunity to do so. Second, due to the structure of the committee process, witnesses and government officials were not required to provide evidence to support their arguments or be subject to examination or rebuttal. It was not at all uncommon, for example, to hear a government official state on one day that the right to navigate is intact and to hear a non-government witness state on another date that the right to navigate is imperiled. One government spokesperson stated repeatedly that the public had been “misinformed”,57 re-framing the contradictions in a way that suggested government information is inherently more reliable than information from the public at large. In the face of contradictory information, Senators had two options: accept all information on its face, giving equal treatment in the final report. Or, decide which speakers were more credible, essentially deciding who do they most trust.

The report takes a middle road. Its eighteen pages describe the history of the NWPA, the environmental assessment process, and the changes to the legislation. The “Observations and Recommendations” section of the report summarizes the main technical concerns with the new NWPA presented during the hearing process. The report is detached in tone and does not generally make any judgements on matters of fairness, rights, or policy. The report does make the following four recommendations:

21

56 Senate, SCEENR Report, supra note 20.

57 Senate, SCEENR, 23 April 2009, supra note 35 (David Osbaldeston).

1. The committee recommends that Transport Canada develop and implement an effective communication strategy and consultation process to seek the views of waterway stakeholders on any future amendments to the Act, including any changes to regulations, and during the five year review of the Act.

2. That the Navigable Waters Protection Program develop regulations to replace the Ministerial Order of May 9, 2009.

3. That Transport Canada amend relevant sections of the NWPA using a process outlined in section 32 of the Canada Shipping Act, 2001 for incorporating reference materials.

4. That the federal government ensure adequate resources are made available to the Navigable Waters Protection Program so that it can better meet its economic targets for infrastructure development and reduce the delays for larger projects while maintaining its responsibility to protect the public right of navigation.58

The Senate Committeeʼs report is significant, even in its brevity. By virtue of its recommendations, the Committee recognizes precisely the concerns that the public raised: yes, consultation was flawed; yes, the new NWPA provides too much discretionary power to the Minister of Transportation; and yes, administrative solutions are still needed.

Unless the NWPA is revisited in a future session of Parliament, the next official review will be in 2014, five years from now.

Slippery slope: Why we fear(ed) the new NWPALake Ontario Waterkeeper is one of eight Waterkeeper organizations in Canada and nearly 200 around the globe. We are a grassroots movement of independent public interest organizations dedicated to clean water and strong communities. Our goal is to restore and protect swimmable, drinkable, and fishable waters for every person in every community.

Our vision of a swimmable, drinkable, fishable Canada is rooted in our respect for the environmental rights that have protected communities and individuals for thousands of years. These rights transcend legal systems, cultures, and continents. Lake Ontario Waterkeeper, with the support of our seven Canadian Waterkeeper affiliates, expressed concerns about the new NWPA at every stage of the process.

We were not the only ones to speak out. From coast-to-coast, non-governmental organizations, individuals, commercial outdoors interests, and many others voiced concerns about the new NWPA. The names of the individuals and organizations are too

22

58 Senate, SCEENR Report, supra note 20, “Executive Summary” at IV.

numerous to list; virtually every outdoors, environmental, and conservation organization in the country spoke out, as well as thousands of individuals.Very few were given opportunities to speak formally to decision-makers.59

There were four main objections to the new NWPA, consistent from 2008 through 2009. First, the new NWPA could transform a citizenʼs “right” to navigate into a “privilege”. Second, the new NWPA eliminates much of the transparency in the decision-making process, thereby undermining accountability. Third, the increased reliance on discretionary decision-making politicizes what was once a scientific process. Fourth, the new NWPA creates two tiers of environmental protection; depending on who you are or where you live in Canada, your waterways may receive more or less protection than another communityʼs waterways. Many of these concerns were validated by the Senate Committeeʼs report of June 2009.

From a right to a privilege

Throughout the consultation process, the idea that navigation is becoming a privilege in Canada was hotly contested. Transport Canada officials repeatedly assured the public and Parliamentarians that the new NWPA still upheld the right of navigation. The issue is not that clear, however.

First and foremost, as with most areas of law, experts and arm-chair critics can say what we want about the matter. It is only when arguments are tested in a court, however, and an official decision is handed down that the issue is clarified. At this stage, all opinions are just that - opinions.

The “right” to navigate is linked inextricably to the notion of rule of law. From Ancient Rome through middle-ages England, the idea that even emperors and kings must follow certain rules has had a profound impact on different societies. Governments do not own public resources; these resources are managed in trust for the people, and governments are subject to rules about what they can and cannot do. In Canada, because of our European and our First Nations traditions, our waterways are the peopleʼs domains. The NWPA gave the federal government the ability to interfere with navigation, but only when certain procedures were followed: the public had to be notified; a written decision had to be made; terms and conditions could be imposed, and so on.

First Nationsʼ rights are separate from and additional to the individualʼs right to navigate. In its submission to the Senate committee, the Assembly of First Nations expressed concerns that the changes to the NWPA “threaten First Nationsʼ Aboriginal and Treaty Rights”. The Assembly recommended that new clauses be added offering explicit guidance on Aboriginal and Treaty Rights, since such requirements are currently absent from the NWPA. The Assembly also described numerous ways that decisions made

23

59 Those organizations and individuals are listed below in Appendix A.

under the NWPA could impact First Nationsʼ rights, noting that these rights “prevail over all other matters.”60

The main feature of the Canadian system was that the government had to go to the people every time it allowed one interest to interfere with navigation. Under the new NWPA, this is no longer the case. Because classes of works and classes of waterways no longer require government approval, it is now possible to interfere with navigation in Canada without public consent. The onus has shifted from the developer to the private individual. Where once the developer had to prove that a work would not interfere with navigation, now the private individual must prove that a work will interfere with navigation. Without requiring public notice, an individual or First Nations community may not even know about a work before it is constructed, let alone assemble a case proving its impacts on navigation.

Going to the people before making a decision served two theoretical purposes. The action allowed those who might be directly affected by the proposal to make a comment and improve the decision. It also served as a constant reminder that navigable waterways are the peopleʼs waterways, that governmentʼs role was to facilitate - but not control - different uses of those waters. The first purpose is fairly easy to understand. The second is more abstract, more conceptual. It also has important consequences of our culture and for the evolution of our decision-making systems. What happens if industry stakeholders and Transport Canada officials forget that they do not own Canadaʼs waterways? What happens if they come to believe that their interests are paramount? What kind of arrogance could this breed in succeeding generations of decision-makers? And what could be the consequences for our nationʼs waterways?

It is true that the first Ministerial Order issued under the NWPA does not embody our worst fears. For the most part, it identifies “minor” works and “minor” waters that are relatively non-controversial.61 This has no bearing, however, on whether or not the new NWPA is open to abuse soon, or in the distant future.

Our fears - speculative as they may be - deepened as the NWPA changes were pushed through. At very few points in the process did any officials or decision-makers demonstrate respect or empathy for the publicʼs concerns. Throughout the process, requests for meetings and hearings went unanswered. Decisions were made behind closed doors. As one witness before the Senate so aptly stated:

Certainly, people who follow this legislation closely would expect to see changes to the NWPA as a stand-alone bill. The way in which changes to the legislation came

24

60 AFN, supra note 11 at 11.

61 Ministerial Order (Hon. John Baird, Minister of Transport), C. Gaz. 2009.I.1403 (Minor Works and Waters (Navigable Waters Protection Act) Order), online: Canada Gazette <http://gazette.gc.ca/rp-pr/p1/2009/2009-05-09/html/notice-avis-eng.html#d103>.

out would give rise immediately to concerns that there is an attempt to pass something surreptitiously.62

Fear, speculation, and lack of transparency are hardly the hallmarks of an appropriate decision-making process when it comes to a matter of ancient rights. Proponents of the new NWPA could have done so much more to ease our fears about the loss of the right to navigate. The process by which the law was changed and the process by which approvals would be issued under the Act could have been both efficient and transparent. Instead, Transport Canada officialsʼ reassurances are undermined by the secrecy of the decision-making process and the exemptions from Parliamentary and public review contained in the legislation. More interest was shown in with-holding information from the public and from Parliament, than was shown in protecting an ancient right. New powers were given to the Minister, while simultaneously opportunities for public, First Nations, and Parliamentary oversight were reduced or eliminated.

Another tell-tale sign that our rights were in question came early on in the process. At the first hearing before SCOTIC back in 2008, Transport Canada officials expressed their desire to change the name of the legislation from the Navigable Waters Protection Act to the Navigation Protection Act.63 In essence, their aim was to streamline the decision-making process by protecting certain aspects of existing navigation, rather than navigable waterways themselves. This proposal could have changed the legislation such that it no longer protected all waterways upon which some form of navigation could occur, either now or in the future.

This, at its heart, is the right to navigate in Canada: we donʼt know who you are, where you are going, or which waterways you will want to use … but when you need them, they will be there waiting for you. Under Transport Canadaʼs proposal, if you do not exist today, are not using waterways for specific set of uses, and are not known to the government, your protections may slip away. The difference between “navigable” and “navigation” is more than mere semantics; it is the difference between a right and a privilege.

Reducing accountability

One of the hallmarks of accountable government is transparent decision-making. Transparency includes providing notice when decisions are being made, publishing written decisions that can be read and studied, identifying the decision-makers, respecting for access to information laws, and participating in traditional Parliamentary processes. The new NWPA offers few of these accountability measures.

In theory, accountability has very little to do with creating opportunities for political enemies or angry citizens to cry “gotcha!” Accountability is about making the best

25

62 Senate, SCEENR, 26 May 2009, supra note 55 (Ron Kruhlak, Partner, Group McLellan Ross LLP).

63 SCOTIC, 12 February 2008, supra note 19.

possible decisions today and in the future. Criticism and consultation may involve debate, but they are also part of a collaboration that ensures the best possible information is brought forward. It is never cynical to advocate for accountability.

The new NWPA reduce transparency by eliminating Parliamentary oversight and public notice for regulations and orders. It facilitates decision-making out of reach of the Access to Information Act. These changes are discussed above. It may reduce dramatically the number of federal environmental assessment processes that communities typically appreciate and industry typically bemoans. This is discussed below. The new NWPA also delegates much decision-making to unnamed officials at Transport Canada. As Mark Mattson of Lake Ontario Waterkeeper told the Senate Committee on May 7, 2009, this delegation of authority reduces transparency in the decision-making process and raises concerns about accountability:

To be clear, the right can always be taken away by government or politicians, under certain circumstances. That was the case with the old Navigable Waters Protection Act. However, the new act makes it so that it is no longer a right or obligation on the part of the politician – the minister – to take responsibility for those exemptions. It can be done at lower levels of government. Other people who are nameless to us – whom we do not even know – can make decisions that your river is not that important; your use of it is that not important.64

Good government is traditionally accountable and as transparent as possible. Lack of accountability and secrecy in decision-making are typically associated with corruption and abuse of powers. This is not to say that all decisions made behind closed doors are corrupt, just that a correlation exists. Transparency and accountability are long-accepted hallmarks of healthy democracies; they are generally considered safeguards - checks and balances - against future abuses.

Politicizing decisions and side-stepping science

When we talk of “environmental justice”, we generally mean that every community and every waterway is afforded equal protection under the law. It is a concept that is linked to the rule of law and the individualʼs ancient rights, including the right to navigate. When there is environmental justice, the rules apply equally to everyone. It does not matter who has the most connections to political powers, who has the most money, or who lives in an area suffering from historical pollution. Environmental justice is both a conservative and and a liberal principle. It suggests that we must respect the rule of law and that members of the community are free to act, so long as they do not hurt anyone.

Politics are, of course, part of government life. We do not pretend that any decision-making process is entirely free from political considerations. That said, when it comes

26

64 Senate, Standing Committee on Energy, the Environment and Natural Resources (7 May 2009) (Mark Mattson), online: Parliament of Canada <http://www.parl.gc.ca/40/2/parlbus/commbus/senate/Com-e/enrg-e/05evc-e.htm?Language=E&Parl=40&Ses=2&comm_id=5>.

to the application of the law and the protection of an ancient right, decision-making should be as free from political considerations as possible if it is to remain fair. Decision-making belongs in the realm of administration. Put another way, when a Transport Canada official - be it the Minister or a civil servant - makes a decision under the NWPA, that official is not engaging in a political activity.

This is no longer the case. The Minister and is staff now have substantial leeway to decide what is or is not a navigable waterway, what is or is not a minor project, and what is or is not a “significant” interference with navigation. We have already seen substantial evidence to suggest that some industries and organizations have more access to government decision-makers than others. Political and economic clout are already playing a role in who gets the ear of government and who has influence. Without mandatory transparency, accountability, or decision-making criteria, it is doubtful that this will change.

The reduced role for science further politicizes the decision-making process. Under the old NWPA, every project approved by the Minister had to first go through an environmental assessment process (“EA”). Depending on the scale and potential impact of the project, the EA would consider issues such as potential environmental impacts, mitigation measures, the need for the project, alternatives to the project, and the interaction between that project and others in the same geographic area. If environmental impacts could not be mitigated, the project would be denied. Otherwise, conditions were imposed to protect the environment if necessary and the project would be approved. The entire process was open to the public.

While the EA process is far from perfect, it is primarily a science-based exercise: what will the impacts be? how can we prevent them? and so on. This process was deemed too onerous and unnecessary for smaller projects. By eliminating the EA trigger, Transport Canada hoped to eliminate EAs for projects with “a predetermined fate—work that will be approved as long as you build it in a specific way in a specific type of water.”65 It also hoped to eliminate the mandatory review of the four named works - bridges, booms dams and causeways; the possibility of a discretionary review would remain.

In its efforts to “streamline” the process, however, Transport Canada relied heavily on aggregate information. It suggested, for example, that there was little reason for environmental concern because the changes would affect in general, narrow and shallow waterways.66 While this perspective may appear logical from the regulatorʼs point of view, it is problematic to the citizen. The citizen is not concerned with the impacts in general or on average. The citizen is typically concerned with one very specific proposal, one that may fall through the cracks when data is aggregated or be

27

65 SCOTIC, 12 February 2008, supra note 19 at 1205 (David Osbaldeston).

66 See e.g. Bob Gowe of Transport Canada, Strategic Environmental Assessment for Amendments to the Navigable Waters Protection Act: Preliminary Scan (n.d.) [Gowe, Strategic] at 4.

the exception to the rule. What is more, it may not be that the project on its own is problematic; it may be that the project, in conjunction with other projects in the area, combine to threaten navigation or the environment. A science-based approach takes into consideration the unique aspects of each proposal and the cumulative impacts that differ from place to place.

“Two-tier” environmental protection

Two-tier environmental protection is a problem in Canada. It creates one set of rules for one community, and another set of rules for another community. Two-tier environmental protection occurs when those with greater political and economic clout have greater access to decision-makers. It also occurs when a community is already plagued by environmental problems, such as declining water levels or historic pollution.

Our decision-making bodies seem to have short environmental memories in this country. When we assess the potential environmental impacts of a project, we usually use the present as a baseline. Will a project make things better or worse than they are today? This approach creates a cycle of pollution and environmental devastation that plagues the same communities over and over again. Want to build a plant with smelly air emissions? Put it in Sarnia, which already has some of the worst air quality in the country. Want to build a plant with a water intake that threatens fish? Put it on Lake Ontario, which has the fewest fish left on all the Great Lakes.

The new NWPA institutionalizes two-tier environmental protection in two ways. First, the new discretionary powers and opportunities for political interference mean that stakeholders with political and economic clout have greater influence than in the past (as described above). Second, it fosters a decision-making culture that sees “minor” or “shallow” or “seasonal” or “remote” or “narrow” or depleted waterways as less important. The Don River, once the heart of navigation in downtown Toronto, may never be navigable again if Transport Canada sees its job as protecting “navigation” instead of “navigability”. Across Lake Ontario, and presumably throughout Canada, we can see once navigable waters such as the Oshawa River and the Montgomery River reduced to partially navigable creeks; their names are changed, and their histories soon forgotten. Under the short-sighted, industry-focused approach enshrined in the new NWPA, lost rivers are unlikely to be restored and navigability, once sacrificed, never returned.

[Why] Is this an environmental issue?Over the course of the NWPA hearings - both at the House and Senate levels - two different perspectives emerged. Some viewed the NWPA issue as an “environmental” issue, while others did not. The tension between the different perspectives underscored nearly every hearing of every committee. The issue was never openly examined, but it is a very important point. An exchange at the SCOTIC in 2008 between Mr. Ed Fast,

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Conservative Party of Canada, and Krystyn Tully, Vice President of Lake Ontario Waterkeeper, illustrates the tension:

Mr. Ed Fast:The focus is the environment and the quality of the watersheds that you consider in your work. Is that correct?

Ms. Krystyn Tully:That's correct.

Mr. Ed Fast:Your purpose is not to address the infrastructure needs of Canada. Is that correct?

Ms. Krystyn Tully:I think it depends on how you define infrastructure. We've seen how important these waterways are. They are fundamentally the natural infrastructure for Canadian communities. You cannot win back waterways across Canada if you don't make sure that environmental laws are respected.

Mr. Ed Fast:Are you suggesting that waterways are infrastructure?

Ms. Krystyn Tully:They're the foundation of the community. Are you talking about man-made infrastructure or are you talking about the wealth and assets our communities are built on?

Mr. Ed Fast:I just want to make sure we understand what your purposes are.

By the way, I don't want to be adversarial. I just want to understand the focus of your work. I'm assuming it's the protection of the environment and the protection of the quality of the water in waterways within your jurisdiction. Is that correct?

Ms. Krystyn Tully:That's correct.

If you're trying to figure out the connection between the environmental mandate of the organization and the Navigable Waters Protection Act, those two really do go hand in hand going back 2,000 years, as I tried to articulate but maybe not well enough. The reason we're protecting these waterways is not just for the sake of the waterways themselves, it's that our communities need these to be strong, and that's why we're here today.

Mr. Ed Fast:

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That brings me to the key question, and that has to do with whether the Navigable Waters Protection Act has as a purpose the protection of the environment. I believe most of us here at this committee have made the assumption from reading the act that the purpose is to protect navigation and, yes, as you said, public access to our waterways. It is not the purpose of this act to protect the environment, but there are triggers within the act right now for environmental assessments.

Numerous witnesses have already appeared before us, and we've received numerous submissions. Virtually all of them have taken issue with the antiquity of this act, how antiquated it is, and how incapable it is of meeting the needs of Canada today, because of an inability to get infrastructure in place, because of all these obstacles the act places in the way of getting this work done.

Do you see this act as being an environmental act as well as a navigability act, or is it, as you initially stated, to protect the public's right of access to these waterways as opposed to focusing primarily on the environmental aspects of our waterways?

Ms. Krystyn Tully:First, I don't think I've explicitly said that I think the Navigable Waters Protection Act is an environmental statute. I think it's exactly what it says it is. It's there to protect navigability and navigation and the public's right to navigate.

That said, it triggers the environmental assessment process for a reason. Any time we talk about the public's right to access water, there is an environmental consequence. I hope I've helped in talking about some of that here today.

In particular, I would like to make the point that you can't really separate the environmental impacts from these other things. I'm a little concerned that perhaps you're trying to separate environmental issues from navigation issues. We're not here for any ulterior motive whatsoever. We're here to give you a perspective from the grassroots, to tell you how important this legislation is to individuals and how important this decision-making process has been.

Mr. Ed Fast:I just want to assure you that's not the case, to separate the two; what we're trying to do is restore some balance. As Mr. Laframboise mentioned, the balance between those various aspects--the environment, navigability, infrastructure--has been lost. We don't want to back 2,000 years. We don't want to deal with an act that's even 100 years old. We want a modern act that addresses today's needs.

There are complaints from communities across this country. There's unanimity from the municipalities, the FCM, provinces, territories, and cities across this country that the current act is a huge hindrance to our ability to build much-needed infrastructure.

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You're suggesting we simply back off from restoring that balance and that the primary focus should still be navigability and the environment. We're not saying that those aren't important; we're simply saying we've lost that balance. The timeliness of getting this work in place has been lost for many, many years.

Ms. Krystyn Tully:I can't speak to the administrative burden that I know you have been briefed on, that some people in the transport department, for example, may be experiencing . I would say that I would be extremely hesitant to suggest that such things as the Magna Carta, old as they may be, are not relevant or important. That is one of the bases for what is considered appropriate and respectful of public rights in Canada. Navigation has always been part of that.

The purpose of the act, as I said before, is to protect individuals and citizens and their right to navigate; it is not to protect the interests of those individuals who wish to infringe upon that right. That's the balance the committee may be looking to strike.67

Mr. Fast made reference to this exchange a few weeks later, when he made this statement during a subsequent SCOTIC meeting:

She drew on what she claimed was public policy and law going back 2,000 years. The Canada we know today didn't exist 200 years ago, let alone 2,000 years ago ...

I'm somewhat frustrated by that kind of approach. I think Ms. Tully did admit that this was an act that addresses navigability, as opposed to the environment. Then she spent 80% of her time trying to convince us that it's actually an environmental act.68

So what is it? Is the Navigable Waters Protection Act an environmental statute or is it not? Are the environmental organizations who appeared before the various committees interested in navigation or the environment? And are environmentalists attempting to twist the NWPA for our own purposes? The answer is simple: Yes, the NWPA is a statute about navigation. Yes navigation and environmental issues are connected. And the only ulterior motive of the Waterkeeper movement is the protection of our communities now and for the generations to come.

Generally, the word “environment” refers to “the surroundings or conditions in which a person, animal, or plant lives or operates” or “the natural world, especially as affected

31

67 SCOTIC, 12 February 2008, supra note 19 at 1225.

68 House of Commons, Standing Committee on Transport, Infrastructure and Communities, 39th Parliament, 2nd Session (3 June 2008) at 1135, online: Parliament of Canada <http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3543792&Language=E&Mode=1&Parl=39&Ses=2>.

by human activity.”69 It means “all living and non-living things that occur naturally on Earth or some region thereof.”70 Under the Canadian Environmental Assessment Act, “environment” ...

means the components of the Earth, and includes(a) land, water and air, including all layers of the atmosphere,(b) all organic and inorganic matter and living organisms, and(c) the interacting natural systems that include components referred to in paragraphs (a) and (b)71

By both dictionary definitions and legal definitions, the word “environment” includes Canadaʼs waterways. These waterways are in our surroundings. They are part of our natural world and affected by human activity. They are included in the legal definition of “environment” found in the CEAA. Logically, then, whenever issues relating to the fate of Canadaʼs waterways are discussed, so is the “environment”.

The primary purpose of the NWPA is not to protect “the environment”, of course; the legislation does not speak to land use issues, air issues, or living organisms. It is entirely possible to protect navigability while at the same time destroying parts of the environment. It is more difficult, though, to imagine works that would destroy navigability while still protecting “the environment”. Fish passage and fish habitat depend on the flows of water, as do water quality, biodiversity, and other traditional environmental concerns. Therein lies the connection between navigability and environmental concerns. It is a connection recognized by the Canadian government more than a decade ago, when it chose to make NWPA approvals undergo environmental assessments.

When we appear before our elected officials to speak up for the right to navigate, we have no ulterior motive. If there were no environmental assessment trigger, we would still be there. We are not using the navigation issue as a smokescreen for other objectives.72 We come before them, honestly, and with genuine concern for the navigation issue in and of itself. We are there - and will always be there - because, as Robert F. Kennedy, Jr., president of Waterkeeper Alliance notes, we need our waterways as much or more than they need us:

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69 The Compact Oxford English Dictionary, s.v. “environment”, online: Oxford Dictionaries <http://www.askoxford.com:80/concise_oed/environment?view=uk>.

70 Wikipedia, s.v. “natural environment” <http://en.wikipedia.org/wiki/the_environment>.

71 Canadian Environmental Assessment Act, supra note 17.

72 Although, as far as ulterior motives go, safeguarding clean air and water for now and forever are hardly cause for great alarm.

We're not protecting the environment so much for the fishes and the birds, for nature's sake, but for our own sake. We recognize nature enriches us. It enriches us economically, yes, the base of our economy and we ignore that at our peril.

The economy is a wholly owned subsidiary of the environment. It also enriches us aesthetically and culturally and historically and spiritually and human beings have other appetites besides money. If we don't feed them we're not going to become the kind of human beings our creator intended us to become.

We're not fighting them to save those ancient forests in the Pacific Northwest, as Rush Limbaugh loves to say, for the sake of the spotted owl, we're preserving those forests because we believe the trees have more value to humanity standard than they would if we cut them down.

I'm not fighting for the Hudson River, for the sake of the striped bass, but because i believe my life will be richer and my children and community will be richer if we live in a world there are sturgeon and striped bass in the Hudson.73

The Waterkeeper movement is rooted in the knowledge our communities need access to clean water to survive and the faith that the rule of law is our best chance to restore and protect this water. It may be that, by speaking up for navigation rights, we are also protecting the nationʼs waterways. We can live with that.

The Bigger pictureOver the course of the different hearings, a number of important questions emerged. We can learn much from studying the NWPA process, which offers valuable insight into the historical context of our laws, emerging threats to our environment, trends in decision-making, and issues of justice.

Who is making the decisions?

The amendments to the NWPA were never publicly championed by one, accountable individual. To this day, it is not clear whether the motivation for new legislation came from department staff or the Minister and his political staff. Numerous sources suggest that the changes came from department staff. The 2008 SCOTIC report suggests that the hearings began when “officials from Transport Canada appeared before the … Committee to solicit its support for undertaking consultations towards developing” the new legislation.74 Similarly, a Transport Canada presentation dated March 8, 2007 states that “We must modernize the Act” and that the reality is modernization is “not

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73 Robert F. Kennedy, Jr. (Address to the 12th Public Interest Environmental Conference and 6th Annual Conference of the Environmental Association, Levin College of Law, 8 March 2006), online: University of Florida, Accent Program <http://sg.ufl.edu/accent/transcripts/030806.txt>.

74 SCOTIC Report, supra note 27 at 1.

currently identified as a policy priority in the Conservative platform”. 75 A Strategic Environmental Assessment prepared by Transport Canada also states that Transport Canada proposed amendments following an internal review in 2006.76

Testimony over the course of the hearings, however, contradicts this position. Instead, it is suggested that the changes came from the Minister directly. During testimony to SCOTIC Transport Canada staff stated on several occasions that new legislation was the Ministerʼs wish and that they appeared before the Committee on the Ministerʼs behalf.77 Later, when speaking to the Senate committee, one Transport Canada bureaucrat described how other considerations took over:

They [SCOTIC] issued their report in June and we ended up with a summer recess. Time for our response on the part of the government was preempted by the call of an election, which subsequently led to a new crisis upon the return of the government, that being the economic crisis. In order to deal with the economic crisis after the hearings of the Standing Committee on Transportation Infrastructure and Communities, it was clearly understood that the approval process for a navigable waters protection approval was a great impediment to getting infrastructure projects underway and refurbished in Canada. If that was to be the goal of the economic stimulus package, then they needed to fix the legislation. Regulatory process takes a number of years for full public consultation. It was determined that to provide the benefit over the two year period of the economic stimulus package, orders would be the more efficient and effective way to move quickly and follow up at a later date with a full regulatory review process.78

The language is generic and vague. It is not known who “clearly understood” that the NWPA was an impediment to economic stimulus. It is not stated who “determined that … orders would be the more efficient and effective way.” Requests for more information have been submitted to Transport Canada under the Access to Information Act, but access has yet to be granted to any of the documents.

It is typical of the bizarre sequence of events in which our elected officials became administrators, using parliamentary tools such as legislative amendments in order to address staffing issues, insufficient resource allocation, and “red-tape”. Meanwhile, our administrators became parliamentarians, using the legislative process to circumvent

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75 Transport Canada, (8 March 2007), The Navigable Waters Protection Act Regulatory Inefficiency - A Prime Example. Presentation to NRCan Regulatory Efficiency Workshop (Slideshow), slide 15-16.

76 Gowe, Strategic, supra note 66 at 1.

77 See e.g. SCOTIC, 12 February 2008, supra note 19; SCOTIC, 28 February 2008, supra note 32 (see particularly references to Minister Cannon by Mr. Marc Gregoire and Mr. David Osbaldeston).

78 Senate, SCEENR, 23 April 2009, supra note 35 (David Osbaldeston).

traditional consultation. They argued publicly about the need for the changes, sacrificing objectivity and independence while claiming to do so in the public interest. This is precisely the kind of hazy decision-making process that the public fears may one day compromise a precious navigable water.

In the future, the person or persons responsible for changing law or policy should be identified, as should the intent of the changes and the problems that are being resolved. This kind of clarity would have done much to eliminate or minimize confusion and tension throughout the NWPA process.

Who are are governmentʼs “clients”?

In recent years, the Canadian government has increasingly adopted a style of governance that treats those it regulates like “clients”. This mirrors a global trend that started in the late 1980s.79 At times, this approach reflects a style of management that favours the kinds of buzzwords already mentioned in this paper: eliminating “red-tape”, “modernizing”, “streamlining” and so on. There is a very thin line, however, between a client-centred approach to regulation and the common phenomenon known as “regulatory capture”. Regulatory capture occurs when officials associate with the interests of those they regulate more than, say, the interests of the public at large. It is a somewhat rationale consequence of the close interaction between regulators and the regulated.80

Throughout the NWPA hearings, Transport Canada officials spoke as if they represented the interests of their regulated “clients”. Rarely, if ever, did they speak on behalf of those who wished to use waterways for navigation purposes. The ADM spoke of the need to “balance the needs of those wishing to construct works on our waterways with the needs of those who use the waterways.”81 This language is noteworthy, given that those who navigate waterways have a right to do so, while those who interfere with navigation do so only by special authorization.

When questioned about his consultation with the public, another Transport Canada official described the care and consideration he had offered to industry stakeholders:

Mr. Osbaldeston: On first part of the question with respect to consultation, as you have heard, it is one of the oldest pieces of legislation in Canada. In its 127 years of existence, there has been very little modification to meet current economic needs or, for that matter, any of the historical needs on the way up.

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79 John Alford, “Defining the client in the public sector: A social-exchange perspective” (2002) 62(3) PAR 337.

80 Jean-Jacques Laffont & Jean Tirole, “The politics of government decision-making: A theory of regulatory capture” (1991) 106(4) Q.J.Econ. 1089.

81 SCOTIC, 12 February 2008, supra note 19 at 1125 (Marc Grégoire).

We had myriads of files of complaints from industry – many meetings over the course of the last 20 years with representatives of national associations of the various industries in Canada. We had municipalities writing to us constantly, in each case not only identifying concerns with the legislation and the inability to operate within it, but also providing to us recommendations – suggestions for change, suggestions for improvement.

It is those concerns and recommendations that we considered in our policy work leading toward these amendments. That is the consultative process that we had in advance of the process that has recently undergone parliamentary review.82

From the officialʼs statement, it is clear that the recommended changes to the NWPA reflected the interests of one group of stakeholders, but not necessarily the public at large. In light of the care and consideration afforded to the industry interests seeking to interfere with navigability, it is important to ask: When Transport Canada officials complain about the law being too “restrictive”, or when elected officials are “frustrated” by environmental considerations, whose interests are being represented? If they are speaking on behalf of those they regulate, are they showing signs of regulatory capture?

This is not to suggest that regulators should be hostile towards those they regulate or to avoid consulting with them. In this case, it is quite probable that Transport Canada is experiencing administrative problems that need to be resolved. It is important to remember, though, that the NWPA gives government the responsibility to protect navigable waters for the public - yet the publicʼs voice was not heard until it was essentially too late.

What is consultation?

Consultation is probably one of the most important issues in decision-making today. First Nations law demands it. Environmental laws encourage it. Rapidly changing technology redefines it. Yet few government bodies are doing it well.

Consultation, when done right, leads to better decisions. It brings all the facts to the table. It draws out a variety of perspectives. It injects creativity and foresight into the decision-making process. It promotes respect for individuals and communities and ensures meaningful compliance with Canadian law and policy. Most important, effective consultation does not divide communities.

Consultation, when done poorly (or not at all), as the opposite effect. It fails to consider relevant facts, knowledge, and expertise. It promotes limited perspectives. It breeds suspicion and mistrust that can plague an issue or community for years to come.

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82 Senate, SCEENR, 23 April 2009, supra note 35.

Good consultation is especially important in cases such as the NWPA amendments, where the changes that are considered will limit consultation and oversight opportunities in the future. As Mr. Kruhalk noted, the way in which the changes were introduced contributed to the publicʼs concerns that something untoward was unfolding. Bypassing full consultation, the new NWPA was passed in its proposed form, without modification or compromise. That may be a political victory, but it is not much more. Industry is still concerned that the process lacks clarity. Transport Canada officials still believe the Act needs more changes. Other political parties are pledging to review some of the most recent and controversial amendments in a future session of Parliament.83 The matter is far from settled. Such is the legacy of inadequate consultation.

What is happening to environmental assessment?

Independent, rigorous environmental assessments are becoming increasingly rare in Canada. Throughout the NWPA process, numerous government officials stated that the environmental assessment process would remain intact, that EAs would still be conducted for the vast majority of projects.

This assertion, though, does not tell the whole story. Because of the constitutional division of powers in Canada, only the federal government must review navigation issues. They do not fall within provincial jurisdiction, so most provincial governments lack the expertise or the willingness to assume responsibility. Because of the division of work between government departments, only Transport Canada must review navigation issues. DFO might conduct an EA, but it will focus on fish and fish habitat. What is more, members of the government are on record arguing that navigation is not an environmental issue. If this perspective is shared by others in the federal government, they are highly unlikely to ever consider navigation issues in their environmental assessments.

Because of policies at the department level, fewer and fewer environmental assessments are being conducted. Department of Fisheries and Oceans, for example, has a “no net loss” policy. This policy suggests that, as long as a developer creates one acre of new fish habitat, it can destroy another acre of fish habitat with “no net loss”. In this case, no EA is conducted. In this way, navigation may be eliminated on a waterway without “impacting” fish or fish habitat; DFO would never consider the projectʼs impact on navigability. Transport Canada is the only federal department that will always consider navigation issues in the environmental assessment process.

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83 For example, in unaddressed email correspondence, Mr. Michael Ignatieff (Etobicoke - Lakeshore, Lib) wrote: “If the Liberal Party forms the government after the next election, we will review the impact of these proposed amendments, to see if changes are needed to protect navigation rights, and the environment.” Email received by Krystyn Tully (13 March 2009).

As of this writing, there is an effort underway by the Canadian Council of Ministers of the Environment to “streamline” the environmental assessment process.84 They are considering a hodgepodge of proposals to eliminate “duplication” and “inefficiencies” in the environmental assessments. Transport Canada is one of many federal departments undertaking these streamlining activities; yet, aside from unsubstantiated reassurances from government officials, it is not clear how the changes in the new NWPA will safeguard the environmental assessment process in the future.85

Furthermore, the current federal government has also announced plans to do away with most EAs altogether. The federal government wishes to reduce the number of environmental assessments it conducts and to rely more heavily on assessments conducted at the provincial level; it has said so numerous times via regulatory changes, media accounts, agency documents, and statements in the House of Commons. For example, on March 16, 2009, the Toronto Star reported the following:

John Baird, the federal minister in charge of infrastructure, said last month that the streamlining would eliminate 90 per cent of the reviews Ottawa does by instead relying on the provincial assessments.86

Minister Baird refers to, among other initiatives, two new regulations of March 2009, which exempt certain projects from the federal environmental assessment process for a two year period.87 His intent is confirmed by a presentation to staff of the Canadian Environmental Assessment Agency, dated January 20-21, 2009.

These widespread changes to the EA process dramatically change the context in which the new NWPA will operate. What is more, the changes directly contradict the SCOTICʼs wishes, as expressed in the committeeʼs June 2008 report:

The government, in amending the NWPA, ensure that the “trigger” mechanisms contained in other pieces of relevant legislation for environmental assessments and fisheries habitat assessments are not done away with or impeded.88

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84 Canadian Council of Ministers of the Environment, Potential Models for a One Project - One Environmental Assessment Approach: Discussion paper for public consultation (Winnipeg: Environmental Assessment Task Group, 2009).

85 Note, the common terminology used in the environmental assessment reform: streamline, inefficiencies, modernize, etc.

86 Lauren Krugel “New rules cut ʻunnecessaryʼ assessments: Prentice” The Toronto Star (16 March 2009), online: TheStar.com <http://www.thestar.com/article/603278>.

87 “New environmental regulations to speed up infrastructure: Prentice” CBC News (16 March 2009), online: CBC.ca <http://www.cbc.ca/mobile/text/story_news-canada.html?/ept/html/story/2009/03/16/cgy-prentince-environmental-regulations.html>.

88 SCOTIC Report, supra note 27 at 4.

Given that Minister Baird is also the Minister of Transport (“Minister of Transport, Infrastructure and Communities”), he is well-aware of the changing policy context when it comes to environmental assessments. It is implausible that officials within the Department of Transport were unaware that the entire environmental assessment program is slated for disassembly or that the changes to the NWPA would assist them in this process. By failing to consider the world in which the new NWPA would emerge, there may very well be consequences for Canadaʼs waterways.

The FutureOur concern for Canadaʼs waterways and navigation rights did not disappear when the Budget Implementation Act passed. Our understanding of our rights does not change because a new law muddies the waters.

In the short-term, other legislative changes to the Canadian Environmental Assessment Act and the Fisheries Act are in the works. Those changes mirror many of the changes we saw made to the NWPA, and the decision-makers share many of the same characteristics. There does not appear to be much respect for due process, for the principles of transparency and accountability, for rights or science in our culture today. This is not an affliction shared only by politicians or lobbyists; it runs deeper than that.

Parliamentary procedures bar Canadaʼs 40th Parliament from revisiting the NWPA. A future Parliament could review the legislation, however. Five years from now, the federal government will certainly undergo the first mandatory review of the new NWPA.

Industry interests are already clamoring for more changes. Theyʼd like to see the name of the law changed to protect existing navigation rather than waterways. Theyʼd like to see more self-regulation. As one Transport Canada official says, government and “stakeholders” will be working together:

One of the amendments in the legislation provides for a five year review. We will take the five years of operation of these amendments to assess, in consultation and collaboration with our stakeholders across the country, their benefit to determine whether the amendments are achieving the intended results and to ensure they are not providing any undesirable results that need to be corrected. We have committed to report back and identify whether these amendments are sufficient and whether more are required.89

If ever asked, public interest organizations also have ideas. Weʼd like to see the right to navigate finally affirmed and First Nationsʼ rights enshrined in the law. Weʼd like to ensure the protection of the rights of all people, rather than those powerful few. Hopefully, the consultation program recommended by the Senate Committee will engage us soon and engage us often.

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89 Senate, SCEENR, 23 April 2009, supra note 35 (David Osbaldeston).

In the long-term, the struggle to protect navigability and navigation rights is as much cultural as it is legal. Remembering that Canadians - you and I and our neighbours and our children - have the right to navigate is one of the most important battles that we will fight. The day that we forget is the day that our right is truly lost.

In the long-term, it matters less what the laws and our Parliamentarians say and more what we and our families and our communities believe and do. If we use our rivers, remember our waterways, we will have them forever. If we turn our backs, if we forget, or if we give up, we may lose them forever.

When we forget or when we cease to believe that every single one of us has a right to dip our paddle into the water, to pull ourselves forward from one place to the next … on that day we will find ourselves floating downriver, not knowing where we come from or where we are going. And far, far worse: not caring.

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Appendix A: ConsultationsThe following individuals and organizations appeared before the Standing Committee on Transport, Infrastructure and Communities (SCOTIC) in 2008:90

Department of TransportMarc Grégoire, Assistant Deputy Minister, — Safety and SecurityDavid Osbaldeston, Manager, — Navigable Waters Protection Program

Canadian Environmental Assessment AgencySteve Burgess, Acting Vice-President, — Program Delivery SectorJohn Smith, Director, — Legislative Regulatory Affairs, Policy Development

Department of Fisheries and OceansGilles Belzile, Director General, — Legislative and Intergovernmental Affairs, Policy SectorGinny Flood, National Director, — Environmental Assessments and Major Projects, Oceans and Habitat Sector

Infrastructure CanadaKeith Grady, Senior Advisor, — Environment Review and Approvals, Issues Management Directorate, Program Operations BranchShirley Anne Scharf, Director General, — Issues Management Directorate, Program Operations Branch

Federation of Canadian MunicipalitiesSusan Irwin, Senior Policy and Research AnalystDon Johnson, President, — Alberta Association of Municipal Districts and CountiesDavid Marit, President, — Saskatchewan Association of Rural Municipalities

Government of AlbertaRon Middleton, Director, — Environmental Management Services, Ministry of Transportation

Lake Ontario WaterkeeperKrystyn Tully, Vice-President

Canadian Environmental Assessment AgencyYves Leboeuf, Vice-President, — Policy Development

Department of TransportWilliam J. Nash, Director General, — Marine Safety

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90 SCOTIC Report, supra note 27.

Infrastructure CanadaKeith Grady, Senior Advisor, — Environment Review and Approvals, Issues Management Directorate, Program Operations BranchShirley Anne Scharf, Director General, — Issues Management Directorate, Program Operations Branch

List of Briefs:91

Beaver CountyBrazeau CountyCanadian Construction AssociationCanadian Environmental Assessment AgencyCanoe Kayak Nova ScotiaCouncil of Marine CarriersCounty of Minburn No. 27County of Thorhild No. 7County of Wetakiwin No. 10Department of TransportFederation of Canadian MunicipalitiesGovernment of Alberta, Alberta TransportationGovernment of British Columbia, Ministry of TransportationGovernment of Manitoba, Infrastructure and TransportationGovernment of Newfoundland and Labrador, Department of Transport and WorksGovernment of the Northwest Territories, Department of TransportGovernment of Nova Scotia, Transportation and InfrastructureGovernment of Ontario, Ministry of TransportationGovernment of Saskatchewan, Ministry of Highways and InfrastructureGovernment of Yukon, Department of Highways and Public WorksHeather MatthewsLake Ontario WaterkeeperLes Amis de la Rivière KipawaMackenzie CountyMunicipal District of Wainwright No. 61Ponoka CountyTownship of EnniskillenWestern Canada Roadbuilders & Heavy Construction Association

42

91 Ibid.

The following individuals and organizations appeared before the Finance Committee (FINA) in 2009:92

Ontario Federation of Anglers and HuntersGreg Farrant, Manager, Government Relations and Communications.

Lake Ontario WaterkeeperMark Mattson, PresidenKrystyn Tully, Vice-President

CanoeKayak CanadaAnne Merklinger, Director GeneralJohn Edwards, Domestic Development Director

As an individualJack MacLaren

University of OttawaWilliam Amos, Staff Counsel and Part-time Professor, Ecojustice Environmental Law Clinic.

Department of TransportDavid Osbaldeston, Manager, Navigable Waters Protection Program.

The following individuals and organizations appeared before the Standing Senate Committee on Energy, the Environment and Natural Resources in 2009:93

Transport Canada David Osbaldeston, Manager, Navigable Waters Protection Program Donald Roussel, Director General, Marine Safety

Sierra Club of Canada Stephen Hazell, Executive Director

Canadian Parks and Wilderness Society Jay Morrison, Chair, Right to Paddle Campaign

Canadian Wildlife Federation Terri-Lee Reid, Conservation Researcher Leigh Edgar, Conservation Researcher

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92 House of Commons “Minutes of Proceedings”, 40th Parliament, 2nd Session, (23 February 23, 2009) [House of Commons, Minutes], online: Parliament of Canada <http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3690084&Language=E&Mode=1&Parl=40&Ses=2>

93 Senate, SCEENR Report, supra note 20.

Brian Jean, M.P., Parliamentary Secretary to the Minister of Transport, Infrastructure and Communities

Canadian Rivers Network Phil Green, Director

Paddle Canada Richard Alexander, President

Lake Ontario Waterkeeper Krystyn Tully, Vice President Mark Mattson, President

Ontario Recreational Canoeing and Kayaking Association Jim Wood, Vice President, Corporate Development

Watershed Watch Salmon Society Aaron Hill, Ecologist

Transportation Alberta Ron Middleton, Director, Environmental Management Services

Assembly of First Nations Bob Watts, Chief Executive Officer Stuart Wuttke, Acting Director, Environmental Fellowship

Association of Iroquois and Allied Indians Deputy Grand Chief Chris McCormick

Nishnawbe Aski Nation Terry Wilson, Forestry Coordinator

Canadian Energy Pipeline Association Brenda Kenny, President Jeff Angel, Vice President, External Relations

Canadian Association of Petroleum Producers Peter Miller, Counsel, Law Department, Imperial Oil Resources

Federation of Canadian Municipalities David Marit, President of Saskatchewan Association of Rural Municipalities Susan Irwin, Policy Advisor University of Ottawa - Ecojustice Environmental Law Clinic William Amos, Staff Counsel Yolande Saito, Research Assistant

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Group McLellan Ross LLP Ron Kruhlak, Partner

Transport Canada Bob Gowe, Manager, Navigable Waters Protection Brigit Proulx, Counsel, Legal Services

Transport Canada Ann Gillen, Navigable Waters Protection Officer, Operations and Environmental Programs

List of Briefs:94

Rivershed Society of BC Wilderness Canoe Association Coalition for Equitable Water Flow Canoe-Kayak Canada White-water Dave Rolston, as an individual Dwayne Dosch, as an individual Sault Fly Anglers National Council of Women of Canada Alberta Roadbuilders & Heavy Construction Association Tusket River Environmental Protection Association Peter Karwacki, as an individual Jeremy Arney, as an individual Alliance Romaine

45

94 House of Commons, Minutes, supra note 92.

Works CitedLEGISLATION

Canadian Environmental Assessment Act, R.S.C. 1992, c. 37, s.2(1).

Navigable Waters Protection Act, R.S.C. 1985, c. N-22.

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online: Parliament of Canada <http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3566517&Language=E&Mode=1&Parl=39&Ses=2>.

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Transport Canada, (March 8, 2007). The Navigable Waters Protection Act Regulatory Inefficiency - A Prime Example. Presentation to NRCan Regulatory Efficiency Workshop. Slideshow.

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