If you’ve watched the news anytime between April 2012 and the present, you’ve probably heard something about the “budget implementation bills”, or, more specifically, omnibus Bills C-38 and C-45. While many might recall hearing these words uttered in news broadcasts or reading them in the newspaper, many others might not be aware of the egregious changes that these Bills are responsible for implementing.

For anyone who reads this and does not know, I hope this blog entry helps you understand the severity of the federal government’s actions. Everyone should be enraged about this, and I hope this helps you see why.

Bills C-38 and C-45 are each hundreds of pages long and seek to amend over 40 pieces of legislation all at once. These Bills are bringing significant changes to many Canadian laws, but especially to Canada’s environmental laws, such as the Canadian Environmental Assessment Act, the Fisheries Act, the Species At Risk Act and the Navigable Waters Protection Act.

As you can imagine, to summarize all of the changes made to each piece of legislation would probably make for a way-too-long blog post. So, I’m going to go over the highlights of the changes made to one of our country’s oldest laws: the Navigable Waters Protection Act.

The second budget omnibus bill (Bill C-45), replaces the Navigable Waters Protection Act (NWPA) with the Navigation Protection Act (NPA). The old Act required federal approval before any work could be constructed, removed or altered in the vast majority of Canada’s waterways, thus protecting the rights of Canadians to navigate the country’s oceans, lakes and rivers without interference from logging operations, pipelines, transmission lines and so on. However, the new Act (NPA) significantly reduces the number of waterways subject to any federal oversight. As such, the new Act takes a much more narrow approach to navigational and environmental protection of the country’s waterways and the rights of Canadians.

 In addition, this new Act was passed without parliamentary debate, and without consulting First Nations. Many First Nation leaders have spoken out against the new Act, including the Assembly of First Nations, the BC Assembly of First Nations, and the Union of British Columbia Indian Chiefs.

 Some of the most concerning changes in terms of their potential effect(s) on the environment and First Nations are discussed below.

1. Reducing federal oversight and protection of a significant number of Canada’s waters

The new Act significantly trims down the number of oceans, lakes and rivers that require federal approval before any work is constructed, placed, removed etc. in, on, or through those waters. [1]

Schedule 2 to the Bill C-45 (or the Schedule to the new NPA) provides a list of waters where navigation and federal approval is required: 3 oceans, 97 lakes (reduced from 32 000) and 62 rivers (reduced from 2.25 million), for a total of 162 waterways.[2] Any waterway not on this list will not be protected by federal law, including rivers that have the potential to be impacted by the Northern Gateway Pipeline project.

This means that 99% of Canada’s waterways have lost their protection for navigation purposes as a result of these recent amendments. Under the NPA, proponents do not have to notify the government that they are building a work that interferes with navigation, nor do they need the Minister of Transport’s approval before doing so for any of the non-listed waters. This is concerning, because most of the waters that are excluded from protection are frequented by navigators of some form.

2. Exempting major projects from being subject to the Act (and thus federal oversight)

 One of the most concerning affects of Bill C-45 is the exemption of projects that could have significant damaging effects on both the environment and nearby communities (i.e. First Nations and many Canadian towns and small cities).

 As mentioned above, the NPA requires federal approval before any “work” can be constructed, placed, altered, repaired, rebuilt, removed, etc. in the any of the prescribed “navigable waters” listed under the Schedule to the Act. In the new Act, “work” is defined as “any structure, device or thing, whether temporary or permanent, that is made by humans [including] the dumping of fill or the excavation of materials from the bed of any navigable water”.[3]

 However, despite this fairly broad definition, the amendments also provide that both pipelines[4] and international and/or interprovincial power lines[5] do not fall within the definition of a “work” under the new NPA.

 As such, large and environmentally concerning transmission line and pipeline projects, like Northern Gateway and Kinder Morgan, are exempt from the new Navigation Protection Act. As such, proponents seeking to build such works do not require federal approval before they are constructed. Their exclusion also means that the scope of impacts considered during environmental reviews will be narrower.

3. Absence of First Nation consultation in the approval of projects

 The new Act does not incorporate any requirement or obligation for persons wanting to construct (or place, repair, remove, etc.) a work in any of the waters listed in the Schedule to consult or take account of First Nations rights, title, perspectives and interests.

 Section 6(1) of the new Act gives the Minister of Transport the authority to approve projects that have the potential to affect the navigability of the lakes, rivers and oceans listed in the Schedule to the NPA.[6] However, there is no language in that section (or any other section) requiring the Minister consult with First Nations, or to consider their rights and interests, when issuing these approvals. This is problematic, as the duty to consult is a constitutional obligation, and the NPA disregards that.

 What is more, as mentioned above, the NPA only protects navigation on waters listed in the Schedule to the new Act.[7] This means that any works in a navigable water not listed in the Schedule is not subject to governmental oversight.[8] The duty to consult Aboriginal peoples rests solely on the Crown, not on private entities. This means that unregulated projects in Canada’s waterways could adversely affect Aboriginal rights, yet not trigger any duty to consult or accommodate.

4. Decision-making regarding new protected waterways – now a political affair

The NPA allows for navigable waters to be added to the Schedule, and thus allows for additional waters to be subject to federal oversight and navigable protection.

 However, the only way this can be done is if the Governor in Council (i.e. federal Cabinet) enacts regulations, and only if the waters to be added meet one of three criteria: (1) it is in the national or regional economic interest; (2) it is in the public interest; or (3) it was requested by a local authority.[9]

 Thus, it is ultimately within the discretion of federal Cabinet whether any of Canada’s oceans, lakes or rivers is added to the list of waters that receives navigable protection. What is more, none of the criteria in the new Act incorporates environmental protection considerations (potential impact to all Canadians), or considerations of effects on the rights of First Nations.

5. Creating less room for participation

The NPA severely limits public participation in decision-making involving the navigable waters that the Act protects.

Under the old NWPA, where projects are likely to substantially interfere with navigation, it was a mandatory requirement that the proposed project construction and plans be placed in the local land registry or land titles office,[10] that public notice of the proposed project be provided,[11] and that a public comment period of 30 days would be available.[12] Therefore, not only did the NWPA protect a much greater number of Canada’s waterways, but it also provided opportunities for public notice and participation when works were likely to substantially interfere with navigation on those waterways.

 However, the NPA removes all mandatory public notice and comment periods, and places the decision of whether or not these will be available within the discretion of the Minister of Transport.[13] Thus, it is up to the Minister to decide whether or not public participation will be available, meaning that it is possible for projects that substantially interfere with navigation (and the environment) to proceed in the absence of any public notice or comment.

As you can see, these changes are quite significant: and this is only one of many pieces of legislation that have been changed by the omnibus bills. “Why would the federal government do such a thing?”, you might ask. Well, thanks to Greenpeace Canada, we have an idea.

Earlier this year, Greenpeace released a letter from the Energy Framework Initiative (EFI), an organization that represents every major oil and gas industry association, asking that the government undertake a major overhaul of six environmental statutes that were an “inconvenience” to industry (one of them being the Navigable Waters Protection Act). Five of the statutes mentioned in the letter have since been replaced or have seen major amendments through Bills C-38 and C-45.

 To read a copy of the letter yourself, visit http://www.greenpeace.org/canada/Global/canada/pr/2013/01/ATIP_Indu....