In the 2009 budget, Budget Implementation Act, 2009, tabled February 6, 2009 in the House of Commons, the Conservative government announced proposed amendments to the Navigable Waters Protection Act (NWPA), an Act dating back to 1882 to protect the public right to navigate Canadian waterways by vessel. Although the government claims these amendments, as well as forthcoming amendments to the Canadian Environmental Assessment Act (CEAA), will help stimulate the economy, the Conservative government has been discussing these changes since they have been in power.

The amendments promise to streamline development approvals. The amendments also will provide significant discretion to the federal Minister of Transportation to redefine which types of projects (e.g., small dams) and which classes of water bodies (e.g., small creeks) will be exempt from the NWPA approval process. These exemptions will effectively remove the opportunity for public input and environmental assessment for these types of projects and, thereby, significantly undermine public oversight for a number of development proposals that will affect waterways.

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The NWPA, most recently revised in 1985, is intended to protect navigability of Canada's waterways by the public for commerce, recreation, or transport purposes in any vessel from kayak to cruise ship. The ability to paddle a canoe or kayak is the historical definition for a navigable waterway. Due to this historical definition, the current Act protects very small water bodies from damaging development. Therefore, it effectively, although indirectly, provides environmental protection for many of Canada's waterways.

Under the current Act, any proposed dam, boom, causeway, or bridge will trigger an automatic review under the NWPA to assess impacts on navigation and involves an environmental assessment under CEAA. The proposed amendments remove this automatic assessment trigger. Instead, if a navigable water or a project is deemed "minor", no approval process or environmental assessment will be required, thereby removing federal and public oversight.

Not all Canadian navigable waters will receive protection

The amendments propose a class system for types of projects and types of navigable waters. Essentially some waters and some projects would be classed as "minor" and will be exempted from the approval process and environmental assessment. By redefining navigable waters into classes, waters that currently have protection (such as smaller creeks only navigable by canoe or kayak) will lose that protection. For example, in 2007 Transport Canada proposed a definition for minor waterways where waterways less than 60 cm deep at the high water mark would be considered minor. Because canoes and kayaks require less than 10 cm to navigate a stream, this new definition would seriously undermine the historic test for navigable waters.

To date, the government has not suggested what "minor works" would mean under this amendment.

New discretionary power will make decision making more political than regulatory

The amendments would introduce far broader discretionary power giving the Minister of Transport the discretion to define the classes for navigable waters and projects without scientific criteria, public consultation, or opportunity to appeal. This power of discretion moves these decisions from a regulatory decision-making process to a far more political one.

Bridges, booms, dams, and causeways will no longer automatically trigger an assessment

Under the current NWPA a proposal for a bridge, boom, dam, or causeway automatically triggers an approval process and an environmental assessment. The amendments would remove this automatic trigger for these types of projects.

No environmental assessments for minor waters or minor works

While efficiency is a valuable approach, oversight, particularly when it comes to the environment, is integral to ensure projects do not have profound or lasting effects on our environment. Reversing the trend to integrate environmental considerations into decision making is a step backwards for Canada. These amendments fail to recognize how fundamental environmental health is to economic and social health.

Public consultation reduced

Under the amendments, opportunity for public consultation will decline as public notification will only be required for those projects that are defined to substantially interfere with navigation and environmental assessment will play less of a role. What projects trigger public consultation will be at the discretion of the Minister rather than subject to criteria for assessment. Project proponents will only be required to advertise proposal in one newspaper rather than the current requirement to advertise in the Canada Gazette and at least two other newspapers. The public will have 30 days to respond to the Minister with written comments.

Sources

Amos, Will (with research assistance from Yolanda Saito and Sam Sonshine). February 9, 2009. Ecojustice Memoradum: Proposed amendments to the Navigable Waters Protection Act and the erosion of public navigation rights on Canadian waterways. Ecojustice.

Budget Implementation Act, 2009. February 10, 2009.

I Speak for Rivers Coalition: www.Ispeakforcanadianrivers.ca

Lake Ontario Waterkeeper. February 11, 2009. Research conclusions regarding the amended Navigable Waters Protection Act, as in included in the Budget Implementation Act, BillC-10.

Keevil, Genesee. January 23, 2009. Dam that river act. Yukon News.

Navigable Waters Protection Act (NWPA). 1985.