SUBMISSION FROMLAKE ONTARIO WATERKEEPER/

SWIM DRINK FISH CANADA

IN THE MATTER OF:Navigation Protection Review

SUBMITTED TO:Standing Committee on Transport, Infrastructure and

Communities

℅ Andrew Bartholomew ChaplinClerk of the Committee

Via email: TRAN@parl.gc.ca

FOR MORE INFORMATION, PLEASE CONTACT:Krystyn Tully

Vice Presidentkrystyn@waterkeeper.ca

(416) 861-1237

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November 30, 2016

BACKGROUND

The Navigation Protection Act, formerly the Navigable Waters Protection Act, is one of Canada’s oldest laws. Passed in 1882, its specific purpose was to ensure that works were not constructed that would interfere with navigation without scrutiny from the federal government. It reflects an ancient right to navigate found in both European and indigenous traditions.

The law remained substantially unchanged until 2009, when sweeping changes to the legislation eliminated protections for the majority of navigable waters in Canada and focused the law on specific acts of navigation on waters of interest to the federal government.

Lake Ontario Waterkeeper was the only environmental organization to participate in the committee review prior to the 2009 changes, which shows that the government made little effort to engage the public in the process. We participated again in committee hearings held at the time of the 2012 amendments, further narrowed the Act’s application. Again, these hearings were very limited in scope and very few voices were heard. At no time during either process did we feel as though the federal government heard or respected our expert submissions. Further, promises made by the government to improve the process and transparency going forward were repeatedly broken.

Given our history on this issue, it is disappointing that our organization was not contacted as part of this review process. We are concerned that we are just one of many people and organizations with an interest in this matter who have not been adequately consulted. Of all of the changes to environmental legislation in 2012, public concern around changes to navigation protections were arguably the highest. Some wise and informed presentations were made to the committee this month, but even those who had an opportunity to present to the committee would likely welcome additional consultation on this matter. As Mr. Kyle Vermette of the Metis National Council noted, committee hearings alone should not be considered “true consultation.” Metis, Aboriginal, and non-commercial voices must all be heard to resolve ongoing concerns about access and use of Canadian waters.

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We are concerned, also, by the general tone of these committee hearings. Too much time was spent debating whether or not the committee review should happen. Too little time has been spent understanding the importance of navigation to culture, identity, and way of life for people living in Canada. The failings of this process are particularly apparent when contrasted against the more thorough reviews of fisheries and environmental assessment laws.

For these reasons, we ask the Minister of Transport launch a new review of the status of navigation in Canada, led by the department rather than the committee, and with deliberate, national engagement and consultation.

Recommendation #1: Transport Canada should conduct its own review and ensure there is thorough, national consultation.

What follows is our additional commentary, for the Committee’s consideration.

COMMENTARY

Rollbacks to Navigable Waters Protection Act protections started in 2009

In 2009, the Government of Canada made sweeping changes to the Navigable Waters Protection Act. The significance of those changes is documented in detail in the attached paper, “Born with a Grey Beard”.

When studying changes that could be made to improve the legislation and protect the public’s right to navigate, the baseline should be the Act circa 2008. By 2012, the Navigable Waters Protection Act was already a shadow of its former self. Relations with the public were already poor. Trust in the government consultation process was already shattered.

We recognize that the attachment from 2009 is a lengthy document, but to our knowledge, it serves as the best available testament to the importance of navigation rights and traditions in Canada. If you wonder why the 2009 and 2012 changes upset so many people, this paper provides context. It also provides context for

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understanding why the consultation and review process in 2016 and 2017 must be improved.

Navigation is a right

Recommendation #2: Restore protections for navigation on all waterbodies by default.

For thousands of years, navigating a waterbody has been considered an act of human freedom. The ability to move from place to place and to access waterways free from tyrants, dictators, monarchs, and other powers has been one of the most important hallmarks of a just society.

Navigation protections and traditions were common in Aboriginal and European societies alike and long precede the Navigable Waters Protection Act. This is why the Act is said to have been “born with a grey beard”.

As noted in Committee hearings recently, the federal law existed so that the Government of Canada could help protect navigation rights. It did so by requiring approval from the federal government before building or doing something that would interfere with navigation on the water. The approvals process created an opportunity for people affected by a project to make themselves known and for conflicts to be resolved.

Today, the Act only protects navigation on specific waters. Even then, it gives government weaker powers than before to reject or regulate projects. It rarely triggers public notice or consultation.

Unless all navigable waters are protected, “navigation” becomes a privilege reserved for a select people with select interests in select communities.

The Navigation Protect Act must protect all types of navigation on water

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Recommendation #3: Protect all types of navigation on water; do not prioritize certain communities or sectors over others.

One of the most frustrating arguments made by supporters of the changes is that the Act should only protect certain types of navigation (i.e., commercial) and that it should be easier for certain sectors to undertake projects that interfere with navigation (i.e., urban development, energy development). In many ways, this creates more clarity and protection for proponents of activities that interfere with navigation than it does for people seeking to protect their right to navigate.

This undervalues the importance of navigation to many communities. Is a paid river guide leading a canoe trip not also engaged in “commercial” activity? How is a recreational route used by tourists who bring money into a community recognized for its contributions to the economy? When access to water improves quality of life in a community, attracts businesses, and creates jobs in a region, how is that access protected? Who is looking out for these people and these uses?

These activities are essential activities in Canadian life. According to the 2012 Canadian Nature Survey, 40% of Canadians participate in non-motorized water activities each year (swimming, paddling); another 21% participate in motorized water activities. Further, canoeing and kayaking are ranked two of the most popular activities at secondary properties in Canada (e.g., cottages), suggesting that access to navigable waters has an important impact on property values and property uses. As both the Survey and the OFAH have noted, these activities contribute $14-$15-billion per year to the Canadian economy. Even if the activities are perceived as being “leisure” or less important than commercial activities, they are still important contributors to the economy.

Prior to 2009, the Act recognized this. By protecting all navigable waters for all uses, it made it possible for diverse activities to contribute to the cultural and economic health of a community. The Act was written in a way that protected navigation opportunities, promoted consultation, and made innovation and growth possible. Post 2009, the Act operates as though government can and should pre-determine every possible use of every waterbody, in every community, and keep lists of places and activities deemed

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valuable. This is impossible, and it cannot protect waterways, navigation, or a way of life.

The Navigation Protect Act must protect all navigable waters

Prior to 2009, the Act regulated activities that would interfere with all “navigable water”, defined in practice as any body of water where navigation could occur. As the Minister noted, “the original notion was any waterway that you could put a canoe in.”

Changes made in 2009 and 2012 claim to protect navigation, rather than navigable waters - as if protecting the act without protecting the waterbody is even possible. It was part of series of changes to federal law that promised to protect activities while eliminating protections for the places where those activities would take place (e.g., the Fisheries Act, which no longer protects fish habitat).

Proponents of the changes argue that Canadians may ask to have waters they value added to the list of protected waters. This is a preposterous approach to federal law-making that puts the burden on the public to do government’s job.

Protecting waters by default does not mean that no projects can ever interfere with navigation. It does mean that the purpose of the law is restored and that government is once again responsible and accountable for protecting navigation rights.

Common law enforcement is not a viable alternative

Proponents of the changes in 2012 argued that the right to navigate still exists, but is now left to civil courts to resolve conflicts. This is a poor solution to administrative concerns about regulatory burden. It means that the public only has recourse after harm has occurred. It limits protections to the desperate or privileged few who are able to bring civil suits. In effect, it amounts to no true protection at all.

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There are better ways to address administrative concerns

Recommendation #4: Once protections are restored, find administrative - not legislative - ways to ensure a transparent and efficient regulatory process, including providing appropriate staffing and funding.

In 2009, regulatory burden was said to be the reason for amending the Act. Too many approvals applications were taking up too many government resources and legitimate investments in development and business were being delayed, proponents claimed. Earlier this month, the Committee heard that the reduced number of applications has reduced demand for government resources. This does not necessarily mean that the changes to the Act are “working”. There are many, many ways to make the regulatory process efficient without sacrificing people’s rights. From the hearings in 2008, it was clear that those administrative options were not being explored.

Contemporaneous rollbacks to environmental assessment rules made a bad situation worse

Recommendation #5: Restore public participation in decision-making.

It is impossible to fully understand the consequences of changes to the Act without considering changes made simultaneously to the Canadian Environmental Assessment Act.

The Act itself did not trigger public consultation. The request for an approval under the Act triggered the environmental assessment process because of wording in the CEAA and its related regulations. Because of CEAA protections, the public had an opportunity to learn about, comment on, and improve activities that interfered with navigation.

Proponents of the changes, particularly in 2009, repeatedly stated that rollbacks to this Act would not be a problem because “other” environmental legislation and the CEAA would protect waters and ensure public participation in decision-making. When CEAA, the Fisheries Act, and other federal laws were rewritten in 2012, these assurances were rendered meaningless.

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Proponents also argue that provinces can provide equal protection. This assertion ignores the Canadian Constitution, which explicitly states that navigation is a federal responsibility. It also mistakenly implies that provincial environmental assessment processes are identical to the former federal process; in most cases, they do not apply to the same projects or proponents, are not triggered by the same activities, and cannot be considered equivalent when it comes to protecting navigation rights.

To fix the issues with the current Act, problems with the CEAA must also be addressed.

This consultation process has been insufficient

As noted above, this consultation process has not been commensurate with the importance of navigation issues to the public. The Committee review is not “pointless”, as one member suggested. But it is also not enough to provide the Minister of Transport with the information and perspective needed to resolve the issue. There is still far too much emphasis on streamlining the bureaucratic process for the ease of the department and far too little - arguably no - exploration of the importance of navigation to people. This topic is worthy of government attention.

The attached paper describes just some of the problems that flowed from lack of consultation in 2009. Concerns and mistrust remain to this day, possibly more deep-seated than those associated with any other legal rollback in recent memory.

We fully expect that, through consultation with the larger public, the federal government will come to understand how deeply-rooted navigation is in our national and indigenous culture and how much navigation contributes to all aspects of the economy and daily life. Navigation is not a partisan issue, and we truly believe that a robust consultation process could be invaluable for everyone involved.

RECOMMENDATIONS

In light of the above commentary, Lake Ontario Waterkeeper submits the following recommendations:

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Recommendation #1: Transport Canada should conduct its own review and ensure there is thorough, national consultation.

Recommendation #2: Restore protections for navigation on all waterbodies by default.

Recommendation #3: Protect all types of navigation on water; do not prioritize certain communities or sectors over others.

Recommendation #4: Once protections are restored, find administrative - not legislative - ways to ensure a transparent and efficient regulatory process, including providing appropriate staffing and funding.

Recommendation #5: Restore public participation in decision-making.

APPENDIX ABorn with a Grey Beard

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