How navigable waters and environmental protection flow together

An environmental lawyer considers what is — and is not — part of the Navigable Waters Protection Act

Steven Fletcher, the minister of state for transport, couldn’t have been more emphatic earlier this week when he asserted in the House that the Navigable Waters Protection Act “has always been and remains about navigation and navigation only.” What the act isn’t about, and has never been about, Fletcher insisted, is “environmental protection.”

He was responding with exasperation to a question on Monday from the NDP’s Peggy Nash about why the government is amending the act in a way that means tens of thousands of lakes and rivers will no longer be covered by it. In Nash’s view, that means weakening environmental protection for those bodies of water. Fletcher suggested she just doesn’t get what the law is about.

Yet I seemed to recall the Navigable Waters Protection Act coming up in the context of environmental regulation over the years. So I called Dianne Saxe, a well-known Toronto environmental lawyer, to ask her about it. Saxe explained how the act, while not explicitly about environmental protection, has come to be closely connected with it.

Here’s perhaps the key point Saxe walked me through: four provisions in the Navigable Waters Protection Act automatically required an environmental assessment under the Canadian Environmental Assessment Act. Among them is the key federal power to approve building on navigable waters—structures like bridges, booms, dams and causeways. So approving or rejecting any of these sorts of projects required an environmental assessment under the CEAA regulations.

Or, at least, such assessments were required under the old CEAA. The Tories replaced that law earlier this year with a much-revised statute, which will mean fewer federal assessments in a more limited range of circumstances. But under the previous CEAA— passed in 1992 and in force until its repeal last summer—the Navigable Waters Protection Act was named in regulations as a law that triggered assessments. (You can search here for those regulations.) To claim then, as Fletcher did, that the act was only about navigation and never the environment, is, in Saxe’s words, “just wrong.”

This might all seem a bit technical—multiple acts and regulatory triggers and what not. In a landmark Supreme Court of Canada decision back in 1992, though, Justice Gérard La Forest made it all seem a straightforward matter of up-to-date common sense. Writing the Oldman River decision—and ruling that the environmental guidelines of the day should be applied to a dam-building decision made under the Navigable Waters Protection Act—La Forest observed: “Environmental impact assessment is, in its simplest form, a planning tool that is now generally regarded as an integral component of sound decision-making.”

That was 20 years ago. Look how far we’ve come since.




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How navigable waters and environmental protection flow together

  1. Well there’s the problem then. Every time there’s a “planning” tool, it means you have to slow down and think instead of just going from the gut. Obviously if we want to get the economy moving as fast as possible, we don’t have time to think, we have to hurry up and do stuff. Right stuff? Wrong stuff? Who cares.. it’s like pasta, throw it at the wall and see what sticks. What doesn’t we’ll try again later.

    • The part where this gets really silly is when this govt realizes just how much their attempt to rig the game for business is going to cost them in the courts and in time lost anyway; not to mention the environmental mitigation costs to come down the road due to their duplicity and the inevitable outcome of taking short cuts.

  2. Thank you for following this up JG. It gets a bit complicated at times for folks like me; i guess that’s why they pay you the big bucks.

    “That was 20 years ago. Look how far we’ve come since.”

    Indeed! Heavens only knows where we’ll be in only 3 years if this thoroughly dishonest govt gets to stay the course.

  3. Progressives (Liberals and NDP) are willing to forget about environmental assessments when they want to put up windmills filled with toxic rare earth metals, windmills that slaughter more birds and bats than the oil sands ever will, and without valid studies as to the effects of the low frequency noise pollution they generate on human health and wildlife populations.

    • 1. This relates to John’s article in exactly what way?
      2. “without valid studies” seems to indicate there are studies out there, just you don’t consider them valid.. I’m sensing a “no true scotsman” argument here.
      3. Your thing about windmills slaughtering birds is simply full of crap. If you’re really concerned about the bird population, you should be protesting glass windows.

      • and don’t forget windex. I seem to recall from an earlier thread that in Ontario they were studied.

    • Windmill projects have to go through just as many regulatory hurdles as any other large-scale construction project, both for the structures and the transmission lines. They aren’t just magically decreed into being.

  4. “Or, at least, such assessments were required under the old CEAA. The Tories replaced that law earlier
    this year with a much-revised statute, which will mean fewer federal
    assessments in a more limited range of circumstances. But under the
    previous CEAA— passed in 1992 and in force until its repeal last
    summer—the Navigable Waters Protection Act was named in regulations as a law that triggered assessments”

    I found this interesting. Are you saying this appears to be all about removing that trigger?[ a cbc story on this mentioned that the previous changes had already excepted pipelines]
    And how does that mesh with the one review policy? Would be the NWPA trigger any kind of provincial assessment? This really looks like what it is, all about removing environmental test thresholds to speed things up and reduce costs for business.

  5. What really get’s me about this is the government that is so proud of creating jobs is putting environmental careers in jeopardy. We go to school to get a job doing environmental impact assessments only to find ourselves out of work in an already competitive job market. So let’s increase all our debts and go back to school! That is excellently efficient conservatives…Instead of increasing the retirement age to get more work out of seniors how about working on improving the ability of young people to get jobs. The environment has an infinite job market. It is beneficial for tourism, globally sound, and necessary for our futures. Instead Harper keeps creating a larger displacement of workers. And I live in Alberta…Harper does not give the rest of the country much of a thought. So oust him in the next election. It’s your country not Alberta’s country nor oilsands country. There are other priorities to Canadians then exporting all of our oil cheaply to the U.S. and/or China. That is Harper`s main aim by all these regulation changes. Oil to China. In a few decades water will be flowing out of Canada in the same fashion.

    • Get into reclamation. There’s more work than we can handle, and there’s going to be plenty more to come.

  6. Stephen Harper is a piece of shit and everyone knows it

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