NWPA Amendments Jeopardize the Health of Canadian Rivers

The NWPA mandates that, before a project is built in, on, around, under, or over a navigable waterway, the potential impacts on navigation and the environment mustbe assessed.

Recent amendments to the NWPA grant the Governor in Council authority to regulate, and the Minister of Transport the authority to order the creation of “classes of works” and “classes of navigable waters,” and to exempt either set of classes from all or part of the Act. They also remove prior reference to the four named works of the Act—bridge, causeway, dam, and boom—and grant the minister the sole authority to determine what constitutes a “significant interference to navigation.”

These amendments seem rather redundant, since even in its previous form, the NWPA only applied to waterways that are navigable and dealt with works that are obstructions to navigation.

The amendments authorize the minister to exempt projects and waterways from application of the Act, which is problematic in two ways. Firstly, they threaten the navigation rights of Canadians. For example, a recreational angler could find a runof-river hydroelectric facility builtin a favourite steelhead trout river in British Columbia without any federal
or provincial environmental assessment (EA), without public notice, and without an NWPA permit.

Secondly, the exemption of classes of works and waterways acts as a waiver for the requirement of an NWPA permit for projects that obstruct navigation. The Law List Regulations of the Canadian Environmental Assessment Act (CEAA) otherwise trigger federal EAs for such projects. Exempted works or projects on exempted waterways will no longer require an NWPA permit, and thus no federal EA will be triggered, consequently undermining the environmental protection of Canada’s waterways and posing a threat to all the species and habitats that depend on them.

Furthermore, neither the government nor the House of Commons Transport Committee consulted meaningfully with stakeholders before introducing these amendments.

Government representatives claim to have invited stakeholders from the paddling and environmental communities; however, these groups were invited toward the end of the hearings on a few short days’ notice, and for small NGOs and volunteer-run organizations (such as Paddle Canada or ORCKA) this is not a realistic or fair time frame in which
to turn around a formal response. The failure of the government to consult with aboriginal people, in particular, could be a breach of their aboriginal and treaty rights under section 35 of the Constitution Act.

The NWPA is an important trigger for CEAA, and is, in some cases, the only trigger for any EA, federal or provincial. The NWPA is often a more effective trigger for CEAA than the trigger under the Fisheries Act for two main reasons.

An NWPA permit is required as a prerequisite to the commencement of a project, while an authorization to destroy fish habitat from the Department of Fisheries and Oceans
(DFO) is not required beforehand, and DFO may not be consulted at all before work begins. Proponents of projects that do proceed without such an authorization may be in breach of the Fisheries Act, and may be subject to prosecution, but this is consequential and not preventative.

Moreover, Fisheries Act habitation protection provisions are limited to waters that are frequented by fish. Under DFO’s fish habitat policy, proponents that are destroying fish
habitat may be required to compensate for that habitat; however, the notion that an aquatic ecosystem can be replicated or otherwise compensated for elsewhere is contentious.

While not all waterways serve as fish habitat, they all have ecological significance and serve as important habitat or an important water source for other species.

In conclusion, the NWPA does require reform; however, hastening passage of the Budget Implementation Act due to urgency associated with the economic crisis and perceived need for a quick economic stimulus package was the wrong approach.

The Navigable Waters Protection Program has six officers assigned to the three Prairie Provinces and the three territories, with approximately 40 officers for the entire country. Clearly, capacity to process project assessments in a timely way is at issue. Instead the government has chosen to eliminate some triggers for assessment altogether.

Human destruction of the lifesupporting capacity of the biosphere and the increasing risk of global climate chaos caused by greenhouse gas emissions is the most important
issue of the twenty-first century. That any national government would deliberately throw away key tools to address these critical issues is irresponsible. The Senate Standing
Committee on Energy, the Environment and Natural Resources has undertaken a study of the recent amendments to the NWPA and their consequences for Canadian waterways. They held hearings and heard from witnesses on both sides of the issue. Their report was released on June 11.

Stephen Hazell is the executive director of Sierra Club Canada.