Waterkeeper's comments on "minor" works and waterways, exclusions from navigable waters rules

The Navigable Waters Protection Act (NWPA) is one of Canada’s oldest laws. The NWPA was not revolutionary; it drew from a variety of well-established and respected conventions, including tradition, principles of common law, Magna Carta, and the Code of Justinian. In this sense, the NWPA was “born with a grey beard”, coming into force on the shoulders of centuries-old practices designed to protect every person’s right to navigate on water.

In 2008, Parliament began discussing the most sweeping changes to the Act in its history. Transport Canada officials attributed the impetus for these changes to bottlenecks created by the processes of (a) determining whether or not a waterway is navigable (and therefore protected) and (b) conducting environmental assessments. Staff stated that the department handles approximately 5,000 applications each year and that each officer has “in excess of 100 files they must be working on each year.” 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.” Sweeping changes to the Act were made in 2009, as part of an omnibus budget bill.

Shortly after that, Minister of Transport John Baird published the Minor Works and Waters Order in the Canada Gazette. This order exempts certain types of projects and certain kinds of waterways from the existing regulatory process; this means that some projects can now be built in Canada on navigable waterways without site-specific reviews or environmental assessment.

Transport Canada is now in the process of developing a regulation that will replace the Order. It expects to have the regulation ready for publication in Part I of the Canada Gazette in Fall 2010. It will then be subject to a 30 day comment period. Transport Canada expects the final regulation will be published in Part II of the Gazette in early 2011.

Lake Ontario Waterkeeper prepared a comment in response to Transport Canada's first round of public consultations. We offer the following four recommendations:

Recommendation 1: Establish classes of works based on impacts to navigation.

Recommendation 2: Affirm the public’s right to notice and comment

Recommendation 3: Include a process for appealing decisions to include a work or water in an exempted class.

Recommendation 4: Include monitoring, reporting, and enforcement provisions to guarantee compliance and accountability.

You can view or download the entire 23-page submission in pdf format here.