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The NWPA Issue: Breach of Public Trust |
The Navigable Waterways Protection Act is a law that protects Canada's rivers, streams and creeks. The government wants to change that law leaving the rivers vulnerable. And they don’t want to hear what you think about it.
In January of this year, Lawrence Cannon, the federal Minister of Transport asked a parliamentary committee to conduct hearings on ways to streamline the Navigable Waters Protection Act (NWPA).
Virtually all of the invited stakeholders were there to advocate for making development on rivers easier. The only way to do that would be to eliminate the default right Canadians have had to navigate the rivers of this country.
No paddling, fishing or outdoors groups were invited to make a presentation.
“I do not think there were any paddling organizations included in the list we contacted,” admitted committee clerk Maxime Ricard.
Finally, when faced with an outcry from paddling organizations, the committee extended an invitation to Paddle Canada on the second-last day of the three month hearings. Paddle Canada understandably responded that they did not have enough time to prepare a proper presentation.
Whether by design or incompetence, the committee has only heard part of the story.
Here are three quotes from senior federal public servants who advocated for the curtailing of the public right of navigation in Canada.
The first is from Shirley Anne Scharf, a senior manager with Infrastructure Canada:
“The way it (the NWPA) is constructed right now—and I believe David Osbaldeston made this point—minor waters are such that I believe if you float a canoe in a body of water it is considered a navigable water. From that point of view, streamlining the act and excluding things of that nature would be very advantageous.”
Ms. Scharf is a public servant, standing before a committee of parliamentarians, advocating for the elimination of a public right that has been central to the history of this country.
The second quote is from Marc Gregoire, assistant deputy minister of safety and security at Transport Canada. It lays bare the motivation behind the changes, that of eliminating barriers to development and easing the workload of apparently overworked public servants.
“Amending the definition of "navigable waters" to exclude "minor waters”… would benefit those wishing to construct works in minor waters and provide some workload relief to staff.”
The third is from David Osbaldeston, national manager for the Navigable Waters Protection Program, speaking about his vision of the future of the NWPA:
"As you can see, there's very little we deny or refuse. If somebody has a need to put something in the water, over the water, under the water, or through the water, and has a valid need to do it, we'll try our utmost to get it done in a safe manner."
Incredibly, Mr. Osbaldeston, the most senior public servant in the country responsible for protecting the navigation rights of Canadians, is advocating for the removal of those rights to make way for increased development on our rivers, streams and waterways. This is a breach of public trust of the highest order.
From a detailed reading of these minutes of the committee, it is clear that Transport Canada wants to clear away legal barriers to expedite a backlog of development proposals planned for Canadian waterways. Weakening the NWPA to the point of uselessness is how they intend to do this.
Navigation is under the jurisdiction of the federal government. No provincial laws and no federal law other than the NWPA provide any protection for the public right of navigation.
This is also an environmental issue. Impacts on navigation qualify as environmental impacts under the Canadian Environmental Assessment Act (CEAA). The environmental obligations deriving from the NWPA are central pillars of environmental protection for marine environments in Canada. Contrary to the testimony of the self-interested stakeholders, this is not a weakness. It is a strength. Now is not the time to be weakening environmental protection.
In its fourth report, dated June 2008, the committee members stated their belief that the “recommendations can…provide benefits to the stakeholders in terms of easing the backlog of projects.” The NWPA is an historic law of great cultural, economic and ecological importance. Those who would weaken the law to pave the way for just the type of developments the law is designed to protect against are guilty of a breach of public trust. The good news is that they are also our elected representatives. It is time to demand they speak on our behalf, or hold them to account.
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