TRAN Committee Report

NDP Dissenting Opinion

Conservative legacy

When it adopted Bill C-45, the previous conservative government introduced various disastrous changes to the Navigable Waters Protection Act (NWPA). Passing this bill was part of the Conservative agenda to weaken environmental protection measures with a view to fostering the accelerated development of the fossil fuel sector.

The stated objective of these changes is to refocus the process of approving work on navigable waters to projects that are likely to have a greater impact on navigation activities. By eliminating the automatic triggering of environmental assessments of affected structures, navigable waters, the new regime focuses solely on the protection of navigation. This objective is reflected in the name change of the NWPA, which is now called the Protection of Navigation Act ( PNA).

Under the new regime, environmental and regulatory protections were stripped from 99% of navigable waterways in Canada. For example, building a bridge over a navigable waterway no longer requires an environmental assessment. In addition, the project proponent no longer has to notify the government if the project will impede navigation. Furthermore, the project proponent is no longer required to obtain authorization from the Minister of Transport before beginning construction.

The other alarming change introduced by the Conservatives was to remove the automatic trigger for an environmental assessment if a project interfered with navigable waters. In addition to the works designated by the Minister and pipelines assessed by the National Energy Board (NEB), all other infrastructure projects affecting navigable waters are exempted from an environmental assessment.

New Democrats were vehemently opposed to these changes and took action, calling for these protections to be reinstated.

At the time, the Liberals also criticized the Conservatives’ policy. The now–President of the Treasury Board, Scott Brison, said that these changes were “catastrophic” and that “the Conservatives are imperilling the health of our lakes and rivers.” MP Francis Scarpaleggia, former Liberal Critic for “Water Policy”, said that, “as an MP from Quebec, he was disappointed to learn that only four lakes in Quebec would be protected under this new legislation.”

Another broken Liberal promise

Despite their opposition to the Conservative policies and a campaign promise to reinstate the protection measures, the Liberals have once again shown they cannot be trusted. We were disappointed to see that the Liberal MPs are recommending that the federal government maintain the schedule, which will keep 99% of lakes and rivers unprotected. In addition, the Liberals are refusing to reinstate the environmental assessment requirement for infrastructure projects that affect these waterways by refusing to restart the automatic triggering of environmental assessments.

By recommending that the list of scheduled waters be maintained and improved, the Liberals are breaking their promise but do not clearly support their recommendation on testimony heard by the Committee. The evidence heard during the study highlights two distinct positions. On the one hand, witnesses called for the deletion of the schedule and reinstatement of the protections eliminated while others advocated maintaining the current legislation. The Liberal's so-called consensual recommendations are, in fact, a smokescreen of all the progressives who believed in their electoral commitment to protect our navigable.

The Liberals’ broken promise also affects the rights of First Nations. Kim Beaudin, National Vice-Chief of the Congress of Aboriginal Peoples, said that “the Navigation Protection Act changes are important to indigenous people because they leave millions of water bodies essentially unregulated. With the majority of navigational waters removed from the purview of the act, there is no government involvement in most development projects, and therefore nothing to trigger a duty to consult.”

NDP Recommendations

Recommendation 1: We recommend that the federal government delete the minor works and waters order.

In 2009, the Liberals and the Conservatives joined forces to push through the first measures that would weaken the Navigable Waters Protection Act. Supposedly these changes were made in a bid to revitalize public and private investment in works on navigable waterways: the government and some stakeholders said that the delays and uncertainties resulting from the existing approvals process would discourage public and private investment in structures on navigable waters.

However, the findings of Prof. Adrienne Davidson’s research did not support the conclusion favoured by the Liberals and the Conservatives. Ms. Davidson cited her study "Reducing Federal Monitoring of Aquatic Systems in Canada: Implications of New Navigational Protection": “With respect to reducing red tape, this was one of the pieces we were quite interested in looking at in our research projects. It was part of the rationale utilized in the dialogue around the discussions of the NPA [Navigation Protection Act] changes. I think it is important to note that the number of NWPA-triggered EAs [Environmental Assessments] accounts for only approximately 5.8% of all of the federal EAs in that 10-year period.” According to this study, 53% of the environmental assessments initiated under the Navigable Waters Protection Act were completed within six months. Therefore, these environmental assessments did not require much time and were overwhelmingly approved for projects.

Recommendation 2: We recommend that the federal government restore all of the protections eliminated to navigable waters abolished under the 2012 budget implementation bills.

Once the Conservatives had a majority government, they continued their efforts and almost entirely eliminated protections for navigable waters. Later, in 2011, we learned that a group of industry representatives from the energy sector had been calling on the Harper government to make changes to legislation that protected waterways. One year later, the Conservatives stripped 99% of navigable waterways of their regulatory and environmental protection measures. The Liberal government now has the opportunity to clean up the mess caused by the Conservatives, but it is choosing to continue catering to these same lobbyists instead of protecting First Nations and environmental rights. That is why the NDP is calling on the federal government to remove the schedule to the Navigable Waters Protection Act and to reinstate all of the protection measures that were eliminated.

According to Ms. Andrea Hoyt, Nunatsiavut Government Environmental Assessment Manager, “ The Labrador Inuit land claims agreement states that the precautionary principle will be used to make resource management decisions. Removing protection from 99.99% of our waters does not reflect the precautionary principle or responsible environmental management. The Nunatsiavut Government asks that the Government of Canada restore all lost protections to waters in Canada, including navigable waters in Nunatsiavut, and that if any changes are proposed to that regime—the regime of 2005 under which our land claims agreement was signed—that the Government of Canada then consult with Inuit on those changes and accommodate the rights of Inuit”.

Recommendation 3 : We recommend that the federal government include Transport Canada in the decision-making process for environmental assessments for pipelines that cross navigable waterways.

A number of briefs and witnesses mentioned the National Energy Board’s lack of credibility as regards the environmental assessments it provides for pipelines that cross navigable waters. Emma Lui said that “it’s no secret that there are a lot of concerns about the National Energy Board and its being possibly co-opted by the energy industry, which raises questions and concerns about its actual independence.”

That is why we are recommending that the federal government include Transport Canada in the pipeline approvals process when it affects navigable waters. Emma Lui said “I think the federal government really does have the responsibility to do this and really needs to think about how navigable waterways are impacted. I would hate to see the department not have a role or responsibility in protecting these waterways.” By including Transport Canada in the decision-making process, the Minister of Transport will be involved in the environmental assessment process and will be accountable.  In addition, we believe that, through its Navigation Protection Program, Transport Canada has the expertise required to assess the environmental impact that pipelines would have on navigable waterways.

Recommendation 4: We recommend that the federal government expand the mandate of Transport Canada’s Navigation Protection Program so that officers are once again responsible for accepting and dealing with complaints from the public on issues involving the right to navigate and environmental protection.

By establishing a list of “protected” waterways, the Harper government passed on the responsibility to enforce the right to navigate to provinces, municipalities and the general public. If a bridge or a dam would affect a citizen’s kayak school on a river, it is up to the citizen to go before the court and ask to have that waterway protected. Most citizens do not have the means to pay the costs associated with taking a large project proponent to court. According to Greg Farrant, the Manager of Government Affairs and Policy for the Ontario Federation of Anglers and Hunters, “It is burdensome for an individual to get these issues before the courts. Again, I stress the fact that in going to court on an issue like this, you’re going to court on something that has already occurred as opposed to trying to have something that might occur be stopped or reviewed or looked at again.” On this basis, we believe it is time for the federal government to fulfill its responsibilities to protect the right to navigate so that citizens are not left to take the project proponents to court on their own.

Conclusion

In summary, the NDP recommends that the federal government eliminate the secondary works and waters order so that all projects are assessed. In addition, we recommend the suppression of the Schedule to the Protection of Navigation Act to ensure that all navigable waters are protected.

We also propose to include Transport Canada in the assessment of pipelines affecting navigable waters so that the Minister of Transport is accountable.

We propose to the federal government to re-establish Transport Canada's mandate to deal with public complaints about the protection of the right to navigation.