Lake Ontario Waterkeeper takes a stand

Lake Ontario Waterkeeper, Sierra Club of Canada, Ecojustice Press Release February 23rd, 2009

For more than 2500 years, people have enjoyed a common right to free passage on public waterways. This right can be traced from the Roman era, through such influential documents as the Magna Carta of 1215, to modern times. Canada’s Navigable Waters Protection Act (NWPA) recognizes the public right to navigation in Canadian waters; passed in 1882, it is one of our oldest pieces of federal legislation.

The Navigable Waters Protection Act recognizes the importance of protecting navigable waterways. At the same time, the Act allows individuals and agencies to proceed with projects that interfere substantially with navigation, provided they obtain approval from the Minister. In this sense, the Act both reinforces the historic common right to navigation for Canadians and creates a legal process for limiting or interfering with this right.

The act of obtaining approval from the Minister triggers a federal environmental assessment process. Through this process, environmental impacts and mitigation measures are determined. This assessment process helps to balance the traditional common right to free passage and the need or desire to construct works on or near navigable waterways.

On April 17, 2008, Waterkeeper received an invitation from Mr. Mervin Tweed, Chair of the Standing Committee on Transport, Infrastructure and Communities, to provide a submission regarding proposed amendments to the Navigable Waters Protection Act. A list of seven proposed changes was included in the letter. Waterkeeper provided written submissions on May 12, 2009 and, on very short notice, had an opportunity to appear before the Transportation Committee on May 29, 2008. To our knowledge, we were the only organization expressing concerns that had an opportunity to appear.

On June 12, 2008, the Trans Committee presented its recommendation to Parliament and promised additional public consultation would occur. The next time information was released to the public was February, 2009, with the Budget Implementation Act.

Proponents of the new NWPA say the current Act is creating red tape, delay, and additional expense. This is untrue. The Minister already has the authority to exempt projects from the environmental assessment process - anything except for bridges, booms, dams, and causeways which interfere with navigable waters by their very definition.

The NWPA mandates that, if someone wants to build something in, on, around, under, over, or through a navigable waterway, such projects are subject to an assessment of the impacts on navigation (ability to canoe, kayak, go rafting, etc) and an environmental assessment (in accordance with CEAA) before they can be approved.

Thus, the amendments to the NWPA that were recently included in Part 7 of the federal government’s Budget Implementation Act (Bill C-10) will have repercussions for both access to and environmental protection of Canada’s waterways.

These amendments include:

• The removal of the four named works (bridges, causeways, dams, and booms) as obstructions to navigation

• Granting the Minister the authority to create “classes of works” and “classes of navigable waters” – ie: separating them into “major” and “minor” categories –and exempt them from all or part of the Act as the Minister deems fit

• Granting the Minister sole discretion to determine what constitutes a “significant interference with navigation”

Not only have the above amendments been proposed without proper stakeholder input, but this new Ministerial discretion would not be checked or balanced by any public consultation, transparent disclosure or Parliamentary review.