In the Chamber -- Grant Mitchell's Blog

Weighing the NWPA Changes

Posted 6/23/2009 by Senator Grant Mitchell

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Earlier this year, there was much controversy about the Conservatives’ budget bill, C10. It contained many legislative amendments that many people felt should not be included in a budget bill. These changes included those made to the pay equity rules for federal employee and those made to the Navigable Waters Protection Act. Complicating matters was the governments’ unrelenting pressure to pass the bill without adequate discussion.

In the end, it became apparent that there were employment insurance benefits that would be lost for some people if the bill was not passed immediately. So, confronted with this pressure and despite grave concerns with the bill, the Liberal Senators voted for the bill. However, it was done so on the condition that various Senate committees continue their study on the controversial provisions included in the bill.

I am the Deputy Chair of the Standing Committee of the Senate on Energy, the Environment and Natural Resources. This committee was charged with a review of the changes to the Navigable Waters Protection Act (NWPA). We had a number of meetings and heard many witnesses from all sides of the issue. These included recreational water users, Aboriginal people, the pipeline industry, environmental groups, the oil industry, etc.

The changes essentially meant that “minor” works and “minor” waters would be excluded from review under the NWPA.  Both “minors” will be defined by Ministerial Orders which are not subject to Parliamentary review.

Some see the changes as reasonable streamlining of the process of review for construction projects that might affect navigation on given waterways. Their argument goes that the NWPA had hardly been changed since 1886 while transportation along rivers has; and, construction projects are unnecessarily delayed by NWPA reviews. The significance of this argument was emphasized in light of the pressure to get projects in the stimulus package started as soon as possible.

The other side expressed fears that any weakening of the NWPA review process would undermine proper environmental review. And, many also raised alarm about what might happen to their ability to use Canada’s waterways recreationally if structures were built on them in ways that impeded their use.

Our committee gave theses issues very detailed consideration and here are some of my observations about issues that emerged:

  1. On the one hand, the department officials and the Parliamentary Secretary to the Minister of Transportation (the NWPA falls under Transportation) seemed to argue that the changes really only affect very small projects and very small (not even creeks) waterways. On the other hand, they argued that the review process has to be streamlined if we are to get capital projects started without delay and begin to stimulate the economy. It seemed to me that you cannot have it both ways. The projects are either small in which case they will not do much for stimulating the economy or they are large and they should not be given a pass under the NWPA.

    After pursuing this contradiction, which might have been the product of unnecessary exuberance in “spinning” the case, the explanation emerged that the changes will free up inspectors from having to review projects that really do not require review so they can spend more time making sure that the bigger projects get reviewed more quickly. This might be the case, but the officials had no studies or other basis upon which to assess how significant it will be in freeing up resources.

  1. There was a core concern amongst those opposed to the changes, that somehow environmental reviews are triggered by NWPA reviews. Without the latter, some fear that in some cases environmental reviews will not be initiated. So, the NWPA changes were seen to be eroding environmental regulation.

    There were strong arguments on both sides and it is difficult to resolve the difference of opinion. However, bill explicitly says that all the standards and requirements of the NWPA must be upheld by any builder of a project even if it is not subjected to a NWPA review. And, there are very significant fines for anyone in contravention in addition to facing the penalty of having it knocked down. This is some consolation for those fearing the worst.

    Experience will be the real test of whether environmental reviews will be abandoned under these new provisions. We need to revisit this issue in a year or two to see.

  1. Recreational water users were concerned that they would lose the use of waterways without even knowing or having a chance to make the case against a project that might do this. The argument against this concern is that the onus is on the builder to ensure that standards are met or penalties can be invoked, as noted above. In addition, the case was made that minor waterways have been defined very restrictively reducing the likelihood of a navigational obstruction on a truly navigable waterway would be built.

    This remains controversial, however. There are those who feel that the definition of minor waterway is not that restrictive and that certain navigable waters will be exempted when they are truly navigable.

  1. There were concerns also with the consultation process. It was felt by some witnesses, most notably Aboriginal groups and recreational users, that there was definitely not enough public consultation. The answer to that was that the House of Commons committee consulted various groups. I would argue that there is much more to consulting than just that which can be done by a House committee. The department should have consulted thoroughly and at a detailed level with the many interests affected by these changes before they were put into a bill. Once a bill is drafted and makes its way as far as the committee stage, it is quite firm and difficult to change.

 

On balance, I think it is safe to say that some fears were alleviated, Questions remain. We should have another look at these changes in a year or two to see if the claims made in their defense are in fact borne out in practice.

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