Navigable waters: Federal regulation to exempt some projects, some waters from protection

The Navigable Waters Protection Act (NWPA) is one of Canada’s oldest laws. When it passed in 1882, the idea of protecting an individual's right to navigate public waterways was not revolutionary. The Act stemmed 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” -- standing 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 said that the process of monitoring projects built on navigable waterways was too onerous, jeopardizing economic growth. In early 2009, following a highly controversial prorogation of Parliament, an omnibus budget bill was passed that dramatically changed the NPWA.

Not long after the budget passed, Minister of Transport John Baird published the Minor Works and Waters Order in the Canada Gazette. This Order, made possibly by the changes to the NWPA, exempted certain types of projects and certain kinds of waterways from the existing regulatory process (meaning that some projects can now be built in Canada on navigable waterways without site-specific reviews, public consultation, or environmental assessment).

Transport Canada is now in the process of developing a regulation that will permanently replace the Order. Lake Ontario Waterkeeper prepared a comment in response to Transport Canada’s first round of public consultations. Since no draft regulation has been released, we based our comments on the language in the existing Order.

We offer four recommendations:

Recommendation 1: Establish classes of works based on impacts to navigation. Right now, projects can be exempt from the NWPA because of their type (for example, a "winter crossing" or a "pipeline crossing"). From the perspective of protecting navigation, this doesn't make much sense. Waterkeeper is encouraging Transport Canada to explore a classification system that would do a better job of monitoring impacts on the environment, including navigation.

Recommendation 2: Affirm the public’s right to notice and comment. One of the biggest problems with the new system is the total lack of public participation. Because types of projects or certain stretches of waterways may be exempt from the regulatory process, projects could be built that impact navigation and the people who are affected by the project have no advance warning, no chance to improve the project design.

Recommendation 3: Include a process for appealing decisions to include a work or water in an exempted class. If Transport Canada decides a project is "minor" or a waterway is "minor", the public does not have an opportunity to appeal this decision. This is very important, because many of Canada's waterways are used by people in ways that are not well documented and not well understood by centralized agencies.

Recommendation 4: Include monitoring, reporting, and enforcement provisions to guarantee compliance and accountability. Transport Canada wants a system that will be easier to administer, but it also needs to have tools and resources to make sure that the rules are being followed and that there truly are no impacts on the environment, including navigation.

Our comment is the first of a series of comments on navigation rights and legislative changes in Canada that you will see in the year 2010. You can read the entire submission in original pdf or here, on our website.

This week on Living at the Barricades: In Part I of this two-part episode, Mark and Krystyn go back to June 2009 when Northern Ontario's first Riverkeeper joined the Waterkeeper movement. They talk about the Moose River with counsel Joanna Bull and about what it means to be a "Waterkeeper". Author Joseph Boyden gives a reading from the Moose River, live from the Charles Sauriol dinner in November 2009.

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