Critics, industry divided on motivation for navigable waters changes

Changes to the Navigable Waters Protection Act (NWPA) in the government’s second budget implementation bill had little lobbying support from industry, insiders said.

Groups representing Canada’s municipalities and construction industry applauded the changes in press releases and alongside Transport Minister Denis Lebel at an Oct. 18 press conference.

The new act, as outlined in Bill C-45, disqualified all bodies of water not listed in the bill’s Schedule 2 from the NWPA, now renamed the Navigation Protection Act (NPA). Schedule 2 includes three oceans, 97 lakes and 62 rivers. 

No other industry groups confirmed that they lobbied significantly for the changes.

Organizations registered to lobby on the NWPA include the Mining Association of Canada (MAC), the Canadian Electricity Association (CEA), the Ontario Federation of Anglers and Hunters (OFAH), and oil and gas company Total E&P Canada, the federal lobbyist registry says.

Bruce Rawson of Rawson Group Initiatives Inc. is also registered to lobby on the NWPA on behalf of Vancouver-based Taseko Mines. Aysha Raad Gil and Eddie Kawooya of Global Public Affairs are registered to lobby on behalf of MAC, the registry says.

Raad Gil said in an interview that she is not aware of any other groups interested in seeing changes to the NWPA. She has not discussed the NWPA with anyone in government on behalf of MAC, she said.

MAC is registered to lobby on “Navigable Waters Protection Act & International Boundaries Waters Act as triggers for environmental assessments under the Canadian Environmental Assessment Act,” and other asks. A MAC spokesperson declined to comment, and said the association is still reviewing the legislation.

The CEA is registered to lobby on the NWPA in relation to managing habitat of species at risk and migratory birds, streamlining regulatory processes associated with building new infrastructure, and other issues, the registry says.

The CEA has not done any direct lobbying on the NWPA, spokeswoman Samara Wiseman said in an emailed statement.

The CEA “has historically supported in principle any positive action by government towards reducing regulatory barriers to infrastructure renewal, and that holds true for recent proposed changes to the NWPA in the most recent omnibus package,” she said.

OFAH is also still reviewing the legislation and its potential impact on its members, spokesman Greg Farrant said in an interview. OFAH is registered to seek clarification on earlier changes to the NWPA in the 2009 Budget Implementation Act.

Total E&P Canada Ltd. is registered to lobby on the NWPA “in respect of Joslyn North Mine Project” and Taseko is registered to lobby “for the timely regulatory approval of the Taseko Prosperity Mine proposal under the Navigable Waters Protection Act,” the registry says.

Consultant Bruce Rawson said in an interview he hasn’t lobbied for Taseko in “a very long time.”

Total E&P is still examining the act and won’t provide further comment, spokeswoman Saphina Benimadhu said. Total E&P registered to lobby on the NWPA as a “potential subject” of concern because the Joslyn mine is near two rivers. Benimadhu was unable to confirm whether Total E&P discussed the NWPA with government in any of its meetings.

A forest industry official said in an interview that the official’s organization wasn’t pushing for changes to the NWPA.

“That wasn’t one of our concerns,” the official said, adding that the organization hadn't recently lobbied on the act and wasn't aware that the government was planning changes.

Travis Davies, spokesman for the Canadian Association of Petroleum Producers (CAPP), said CAPP has not been lobbying on the NWPA and is currently reviewing the changed legislation.

The government’s first budget implementation bill, C-38, exempted pipelines from the NWPA. Decisions on whether pipelines infringed on the navigability of bodies of water were shifted to the National Energy Board.

C-38 also allowed cabinet to, for the purposes of navigation, make regulations respecting sections of pipelines that pass “in, on, over, under, through or across any navigable waters” in any area for which ministers of Natural Resources or Indian Affairs and Northern Development are responsible.

Devon Page, executive director of the environmental group Ecojustice, said in an interview that his group hasn't figured out the government's motives for the changes.

“From the extent to which we understand industry demands about relief of the so-called regulatory burden, this goes far beyond what they were looking for,” he said.

The changes to the NWPA were intended to reduce the number of applications needed by those building in or over waterways, Lebel said in an Oct. 18 press release. 

"The current Act has created a bureaucratic black hole holding up simple projects like municipal infrastructure and small recreational docks that do not actually interfere with navigation," Lebel said in the release.

Lebel's office declined an interview request.

The Federation of Canadian Municipalities (FCM) welcomed the changes to the NWPA. 

“The changes announced today will allow local governments to spend less time processing paperwork for small, low-risk public works projects by removing redundancies, red tape and project delays that result in higher costs for property tax payers,” FCM president Karen Leibovici said in the release.

FCM spokesman Mouktar Abdillahi said the FCM had no additional comment beyond the press release. The federation isn't registered to lobby on the act.

The Canadian Construction Association (CCA) endorsed the changes, though they weren't registered to lobby on it either.

“The real problem [with the old NWPA] was the legal uncertainty,” CCA president Michael Atkinson said in an interview. “You’d start a project thinking that everybody’s got all the right permits and the next thing you know you’ve got to stop because somebody has challenged the fact that this was a navigable water and should have [required] a permit from Transport Canada.”

Rulings on whether a waterway is navigable could be challenged in court, he said.

The NWPA changes have come under criticism on environmental grounds from Ecojustice, Green Party leader Elizabeth May and the NDP.

May said in an interview she doesn’t believe changes to the NWPA or earlier changes to the Environmental Assessment Act, Fisheries Act and the National Energy Board’s powers came in response to lobbying by oil producers.

“The oil patch knows enough about the National Energy Board to feel very confident that National Energy Board decisions tend to go their way. They’re not worried about the National Energy Board,” she said.

The government may have changed the NWPA for purely ideological reasons, or in response to pressure from Chinese investors concerned about resource projects being delayed by regulation, May said.

The NWPA changes were made simply for the sake of deregulation, said Will Amos, director of the Ecojustice legal clinic at the University of Ottawa.

Under the new act, the government and National Energy Board will no longer make decisions about whether construction infringes on navigation along a waterway not listed under the act, he said in an interview.

This means common law will govern decisions about these waterways at the federal level, Amos said.

“The common law has for centuries protected the public right of navigation and it has also protected navigable waters, because the two are interconnected,” he said.

The government is simply deregulating and having “the common law pick up the slack,” Amos said.

“That opens up the doors for all sorts of potential industry uncertainty. There’s the potential for public nuisance lawsuits,” he said.

A backgrounder on Transport Canada’s website confirms that waterways not listed under the Navigation Protection Act (NPA) will fall under common law. Organizations building on unlisted waterways can gain protection from court challenges by following “Navigation Impact Assessment” guidelines or opting into the NPA legislation and submitting applications to Transport Canada, the website says.

Municipalities will still have the power to make bylaws pertaining to waterways that run through them, the CCA's Atkinson said, adding local conservation authorities can help municipal governments make informed decisions on maintaining navigable waterways not listed under the NPA. 

peter@lobbymonitor.ca