Presented at the 6th Canadian River Heritage Conference Ottawa, Ontario June 15, 2009, this paper examines the process by which the Navigable Waters Protection Act was amended, the reasons and trends behind the changes, and some of the flaws with the process. The paper suggests that fanciful notions of “navigation” and “rights” still matter in todayʼs Canada. It describes how our collective respect and understanding for the act of navigation has crumbled and how, in our hurry to “modernize” our laws, our Parliamentarians have laid the groundwork for two-tier justice and the unnecessary surrender of wealth.
Written by Krystyn Tully, Lake Ontario Waterkeeper.
Lake Ontario Waterkeeper's submission on the Navigation Protection Act ReviewLOWaterkeeper
On Wednesday, November 30, 2016, Lake Ontario Waterkeeper submitted comments to the Government of Canada on changes made to the Navigation Protection Act (formerly, "Navigable Waters Protection Act") – one of Canada’s oldest laws. Until 2009, the law remained substantially unchanged, 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. Waterkeeper was the only environmental organization to participate in the committee review prior to the 2009 changes, and again in 2012. Here are Waterkeeper's recommendations for the Standing Committee on Transport, Infrastructure and Communities’ consideration.
Lake Ontario Waterkeeper's comments on review of changes to the Fisheries ActLOWaterkeeper
The document is a submission from several Canadian waterkeeper organizations to the Standing Committee on Fisheries and Oceans regarding proposed changes to the Fisheries Act. It outlines 9 recommendations for improving protections for fish and fish habitat in the new Act. Key points include restoring broad protections for fish habitat, simplifying rules against pollution, embracing the precautionary principle, ensuring Fisheries and Oceans Canada remains accountable, and giving the Act an explicit purpose of protecting all fish and fish habitat in Canada.
Appendix A: Accompanying case study to November 30, 2016 submission to the Fi...LOWaterkeeper
This is a support document to the November 2016 Fisheries Act submission by Fraser Riverkeeper, Lake Ontario Waterkeeper, Fundy Baykeeper, North Saskatchewan Riverkeeper, and Ottawa Riverkeeper. This support document is prepared by Pippa Feinstein for Lake Ontario Waterkeeper / Swim Drink Fish Canada.
The document discusses the 1997 UN Watercourses Convention and its role in establishing a framework for governance of transboundary water resources. It provides context on the increasing challenges of transboundary water management. It then summarizes the process of developing the convention from 1970 to 1997 and its key principles of equitable and reasonable utilization, no significant harm, and protection of ecosystems. It also outlines some of the convention's procedural provisions regarding notification and consultation between states sharing watercourses.
The document discusses the UN Watercourses Convention and international water law. It provides background on the convention's development from 1970-1997 through government responses, reports by UN special rapporteurs, and outcomes. The convention establishes a framework for cooperation between states on shared water resources. It covers substantive norms like equitable utilization and no significant harm. Procedural provisions emphasize cooperation, data exchange, joint institutions, and dispute settlement. However, the convention has yet to enter into force due to an insufficient number of ratifying countries. Proponents hope more countries will ratify to strengthen international water law.
The Public Trust Doctrine, Water Rights and Public Use Liability of Landowner...rshimoda2014
David Schade - Chief, Water Resources Section, Alaska Department of Natural Resources, Division of Mining, Land and Water
Risa Shimoda - The Shimoda Group, LLC
This discussion focuses on the conflicts of traditional water rights and the public trust doctrine of public use of waters.
An overview of a representative sample of different States current status with Public Trust and how that can /is in conflict with traditional water rights is discussed.
Lake Ontario Waterkeeper's submission on the Navigation Protection Act ReviewLOWaterkeeper
On Wednesday, November 30, 2016, Lake Ontario Waterkeeper submitted comments to the Government of Canada on changes made to the Navigation Protection Act (formerly, "Navigable Waters Protection Act") – one of Canada’s oldest laws. Until 2009, the law remained substantially unchanged, 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. Waterkeeper was the only environmental organization to participate in the committee review prior to the 2009 changes, and again in 2012. Here are Waterkeeper's recommendations for the Standing Committee on Transport, Infrastructure and Communities’ consideration.
Lake Ontario Waterkeeper's comments on review of changes to the Fisheries ActLOWaterkeeper
The document is a submission from several Canadian waterkeeper organizations to the Standing Committee on Fisheries and Oceans regarding proposed changes to the Fisheries Act. It outlines 9 recommendations for improving protections for fish and fish habitat in the new Act. Key points include restoring broad protections for fish habitat, simplifying rules against pollution, embracing the precautionary principle, ensuring Fisheries and Oceans Canada remains accountable, and giving the Act an explicit purpose of protecting all fish and fish habitat in Canada.
Appendix A: Accompanying case study to November 30, 2016 submission to the Fi...LOWaterkeeper
This is a support document to the November 2016 Fisheries Act submission by Fraser Riverkeeper, Lake Ontario Waterkeeper, Fundy Baykeeper, North Saskatchewan Riverkeeper, and Ottawa Riverkeeper. This support document is prepared by Pippa Feinstein for Lake Ontario Waterkeeper / Swim Drink Fish Canada.
The document discusses the 1997 UN Watercourses Convention and its role in establishing a framework for governance of transboundary water resources. It provides context on the increasing challenges of transboundary water management. It then summarizes the process of developing the convention from 1970 to 1997 and its key principles of equitable and reasonable utilization, no significant harm, and protection of ecosystems. It also outlines some of the convention's procedural provisions regarding notification and consultation between states sharing watercourses.
The document discusses the UN Watercourses Convention and international water law. It provides background on the convention's development from 1970-1997 through government responses, reports by UN special rapporteurs, and outcomes. The convention establishes a framework for cooperation between states on shared water resources. It covers substantive norms like equitable utilization and no significant harm. Procedural provisions emphasize cooperation, data exchange, joint institutions, and dispute settlement. However, the convention has yet to enter into force due to an insufficient number of ratifying countries. Proponents hope more countries will ratify to strengthen international water law.
The Public Trust Doctrine, Water Rights and Public Use Liability of Landowner...rshimoda2014
David Schade - Chief, Water Resources Section, Alaska Department of Natural Resources, Division of Mining, Land and Water
Risa Shimoda - The Shimoda Group, LLC
This discussion focuses on the conflicts of traditional water rights and the public trust doctrine of public use of waters.
An overview of a representative sample of different States current status with Public Trust and how that can /is in conflict with traditional water rights is discussed.
Susan Farady, Seawalls: Legal Implications of Shoreline Protectionriseagrant
The document summarizes key legal issues related to shoreline protection in Rhode Island. It discusses how changing shorelines impact expectations of private property owners and state interests. It outlines that the state owns all tidal lands under the public trust doctrine and that the Coastal Resources Management Council has jurisdiction below the mean high tide line. It also reviews how the common law "common enemy" doctrine has been replaced by the reasonable use test regarding water flow, and discusses some cases related to legal challenges of seawalls.
Chief Keith Matthew, Simpcw First Nation - "Water is the lifeblood of the lan...BC Water Science Symposium
Chief Keith Matthew of the Simpcw First Nation discusses Indigenous rights and knowledge regarding water. He emphasizes that water is sacred, and that Indigenous cultures and laws require protecting water. While colonialism impacted this relationship, opportunities now exist to incorporate Indigenous knowledge and rights into water management. Any water strategy must involve Indigenous groups and recognize their jurisdiction over water resources.
This document provides an overview of water conflicts in India. It discusses growing water importance and scarcity in India. It defines what a conflict is and examines different theories around water rights. It then analyzes several domestic and international water disputes India faces, including with neighboring countries over rivers like the Brahmaputra, Mahakali, and Indus. Specifically, it notes tensions with China over dam construction on the Brahmaputra and historical disputes with Nepal over the Mahakali River. The document also highlights the successful Indus Waters Treaty between India and Pakistan. In conclusion, it argues water conflicts are socially embedded and reflect power relations rather than just scarcity.
Developed from a position paper prepared by Lenin Tinashe Chisaira for the Civil Society Consortium on Constitution Monitoring and Implementation. Presented at the consortium meeting at Elephant hills hotel, Victoria Falls, Zimbabwe. Views are mine
Cascao Hydropolitics Twm Mena 2008 (3 November)Ana Cascao
The document discusses international water law and cooperation in transboundary water basins in the Middle East and North Africa region. It provides an overview of the main legal frameworks for international water law. It analyzes the status of ratification of the UN Watercourses Convention in MENA countries. It also examines examples of agreements for shared basins and challenges in operationalizing equitable utilization. Further, it discusses the nexus between water, law, and politics in negotiations, and reviews main cooperative attempts in MENA basins, highlighting the political nature of transboundary water cooperation.
This document has been prepared by the Agham Advocates of Science& Technology for the People (AGHAM) to aid local communities threatened by dam projects. This reference document contain information and tools that can be used by the community to have a better understanding of dams and make informed decisions how to collectively approach the dam project in their area. This guide is not exhaustive and complete, but centers on basic questions to learn more about the dam project in the area and to guide further research.
Indigenous Rights and Property Rights in the Fisheries: A Case Study From Mi’...FAO
This document summarizes a presentation comparing indigenous rights and property rights approaches to fisheries management using a case study from Mi'kma'ki (ancestral homelands of the Mi'kmaq people in Atlantic Canada). It discusses how an Individual Transferable Quota (ITQ) system introduced property rights that concentrated ownership and harmed small-scale fisheries and communities. Meanwhile, the Marshall Decision affirmed Mi'kmaq treaty rights to a moderate livelihood fishery. However, government response undermined these rights by limiting options to property-based agreements. The document argues that a property rights approach is at odds with indigenous rights and highlights Mi'kmaq resistance and alliances with other small-scale fisheries
The document proposes developing a national action plan to implement the right to water and sanitation in Ghana. It provides background on the evolution of these rights under international law and in Ghana. Key issues include only 59% of Ghanaians having access to improved water and 13% to improved sanitation. Bottlenecks to implementing the rights are the financing gap, with only 35% of needed funds invested annually, and some misconceptions that the rights mean services must be free or will open the government to lawsuits. The action plan aims to address these challenges and translate the human rights to reality for Ghanaians.
Inter-State River Water Disputes in IndiaAnmol Utsav
This document discusses inter-state river water disputes in India. It provides background on water resources and river basins in India. The major causes of inter-state river water disputes are uneven distribution of water, increasing demand, and rainfall variability. It outlines some of the major disputes like Krishna, Godavari, Narmada, and Cauvery rivers. Tribunals are established under the Inter-State River Water Dispute Act to adjudicate where negotiations fail. Approaches to resolving disputes include sub-basin division and equitable apportionment. Solutions proposed to improve the dispute process include treating water as a national resource, limiting actors, and establishing time frames and enforcement bodies.
The document discusses India's need to share river water resources through cooperation between states. It outlines reasons for river water disputes such as uneven water distribution and increasing population. River water disputes can arise from actions that affect upstream or downstream states. Disputes are typically resolved through negotiation facilitated by the central government or tribunals. Important inter-state river water sharing disputes and treaties are mentioned. The document advocates for better water sharing to control droughts and floods, utilize water for agriculture, and promote economic prosperity.
The document discusses the history of water policy in the Great Lakes region, leading up to the current Great Lakes Water Compact. It outlines several past intergovernmental agreements from 1909 onwards that attempted to regulate water usage and prevent pollution, most of which failed to achieve their goals due to lack of enforcement. It then examines issues around Chicago's large-scale diversion of water from Lake Michigan in the early 20th century, which caused economic and environmental problems. Finally, it discusses the 1972 Great Lakes Water Quality Agreement and subsequent policies that made progress toward better management and protection of the lakes, culminating in the 2008 Great Lakes Water Compact currently in place.
The document summarizes lessons learned from Christchurch, New Zealand's response to major earthquakes in 2010 and 2011. It discusses:
1) The earthquakes caused widespread damage across Christchurch, destroying infrastructure and claiming 182 lives. A state of emergency was declared.
2) Restoring critical infrastructure like roads, water, and sewage systems was a top priority. This was achieved through a large coordinated effort involving the city, military, and contractors.
3) The military played a key role, providing logistical support, security, and humanitarian aid. However, coordinating their command-and-control style with the city's more collaborative approach required adjustment.
1. Conflict has arisen between India and China over water resources from the Brahmaputra River, as both countries face water scarcity issues. China has begun constructing dams on the river, worrying India about downstream water availability.
2. India is concerned about the impacts on its agricultural economy and flood management. China views the river as an opportunity for hydropower and addressing water scarcity in Southern China.
3. Opportunities for cooperation include existing dialogues, potential water treaties, and joint infrastructure projects that could help equitably manage the shared river basin. However, both countries have competing interests that must be addressed.
The document discusses tensions between India and China over the Brahmaputra River. It flows through both countries as well as Bangladesh. China's proposals to divert the river have concerned India. The search for water resources has been a source of tension since the 1962 war. Climate change is expected to reduce the river's water supply and increase flooding, impacting livelihoods and straining relations between the countries.
Flooding in nigeria and sustainable land developmentAlexander Decker
The document discusses flooding in Nigeria and its impact on sustainable land development, using Delta State as a case study. It finds that recent flooding has negatively impacted land development activities in Delta State. Property values are lower in flooded areas due to lower demand. Land owners also find it difficult to prove land titles in flooded areas as boundaries and landmarks may have changed. The document recommends enforcing building laws and using technology to forecast floods to reduce flooding impacts and enable sustainable land development.
RECENT DEVELOPMENTS IN PLANNING AND LAND USE LAWJesse Souki
This document summarizes recent developments in planning and land use law in Hawaii, including cases from the US Supreme Court, Hawaii Supreme Court, Intermediate Court of Appeals, and new legislation. Key highlights include: the County of Maui v. Hawaii Wildlife Fund case established a case-by-case analysis for Clean Water Act permits; legislative acts established buffers around landfills, prohibited coal power, allowed county inspections of agricultural buildings, and created a school facilities agency.
Beach Nourishment: It's a Good Investment - Conclusion (Part 4 of 4)QuogueBeaches
The document summarizes the key arguments in a debate about the value of beach nourishment projects. It states that while beach erosion has natural causes, human activities like ports and channels also contribute to erosion. Beach nourishment can help mitigate erosion caused by human structures. It also discusses the recreational, environmental, and economic benefits of beach nourishment projects, and argues that nourishment is more cost-effective over time than alternatives like retreating from eroding shorelines. The document concludes that beach nourishment is worth the investment due to these benefits.
This presentation provides an introduction to the human right to water as defined under international human rights law, and its consequences on broader water management and governance.
It was initially developed for a lecture at the UNESCO Center for Water Law - at the University of Dundee - July 2011.
Human right to water & water rights tradingWaterLex
This presentation was given at the University of Geneva to future commodity traders. The implications of a State's recognition of a basic human right to water on water trading schemes is addressed so as to open a discussion on organizational and legal implications as well as associated risks.
Grand theft of global commons (final edited delivery version)Sam Rodriguez Galope
1) The document discusses China's claim over maritime space in the South China Sea through its "nine-dashed line", which encompasses around three million square kilometers, including areas that belong to other countries' exclusive economic zones under international law.
2) It summarizes key aspects of the UN Convention on the Law of the Sea (UNCLOS), which established maritime zones and declared fishery resources beyond countries' exclusive economic zones and mineral resources beyond their continental shelves as "the common heritage of mankind."
3) It argues that China's nine-dashed line claim violates UNCLOS and international law by attempting to claim sovereignty over waters beyond its territorial sea that are part of the global commons, including the area designated
International Journal of Humanities and Social Science Invention (IJHSSI)inventionjournals
International Journal of Humanities and Social Science Invention (IJHSSI) is an international journal intended for professionals and researchers in all fields of Humanities and Social Science. IJHSSI publishes research articles and reviews within the whole field Humanities and Social Science, new teaching methods, assessment, validation and the impact of new technologies and it will continue to provide information on the latest trends and developments in this ever-expanding subject. The publications of papers are selected through double peer reviewed to ensure originality, relevance, and readability. The articles published in our journal can be accessed online
Susan Farady, Seawalls: Legal Implications of Shoreline Protectionriseagrant
The document summarizes key legal issues related to shoreline protection in Rhode Island. It discusses how changing shorelines impact expectations of private property owners and state interests. It outlines that the state owns all tidal lands under the public trust doctrine and that the Coastal Resources Management Council has jurisdiction below the mean high tide line. It also reviews how the common law "common enemy" doctrine has been replaced by the reasonable use test regarding water flow, and discusses some cases related to legal challenges of seawalls.
Chief Keith Matthew, Simpcw First Nation - "Water is the lifeblood of the lan...BC Water Science Symposium
Chief Keith Matthew of the Simpcw First Nation discusses Indigenous rights and knowledge regarding water. He emphasizes that water is sacred, and that Indigenous cultures and laws require protecting water. While colonialism impacted this relationship, opportunities now exist to incorporate Indigenous knowledge and rights into water management. Any water strategy must involve Indigenous groups and recognize their jurisdiction over water resources.
This document provides an overview of water conflicts in India. It discusses growing water importance and scarcity in India. It defines what a conflict is and examines different theories around water rights. It then analyzes several domestic and international water disputes India faces, including with neighboring countries over rivers like the Brahmaputra, Mahakali, and Indus. Specifically, it notes tensions with China over dam construction on the Brahmaputra and historical disputes with Nepal over the Mahakali River. The document also highlights the successful Indus Waters Treaty between India and Pakistan. In conclusion, it argues water conflicts are socially embedded and reflect power relations rather than just scarcity.
Developed from a position paper prepared by Lenin Tinashe Chisaira for the Civil Society Consortium on Constitution Monitoring and Implementation. Presented at the consortium meeting at Elephant hills hotel, Victoria Falls, Zimbabwe. Views are mine
Cascao Hydropolitics Twm Mena 2008 (3 November)Ana Cascao
The document discusses international water law and cooperation in transboundary water basins in the Middle East and North Africa region. It provides an overview of the main legal frameworks for international water law. It analyzes the status of ratification of the UN Watercourses Convention in MENA countries. It also examines examples of agreements for shared basins and challenges in operationalizing equitable utilization. Further, it discusses the nexus between water, law, and politics in negotiations, and reviews main cooperative attempts in MENA basins, highlighting the political nature of transboundary water cooperation.
This document has been prepared by the Agham Advocates of Science& Technology for the People (AGHAM) to aid local communities threatened by dam projects. This reference document contain information and tools that can be used by the community to have a better understanding of dams and make informed decisions how to collectively approach the dam project in their area. This guide is not exhaustive and complete, but centers on basic questions to learn more about the dam project in the area and to guide further research.
Indigenous Rights and Property Rights in the Fisheries: A Case Study From Mi’...FAO
This document summarizes a presentation comparing indigenous rights and property rights approaches to fisheries management using a case study from Mi'kma'ki (ancestral homelands of the Mi'kmaq people in Atlantic Canada). It discusses how an Individual Transferable Quota (ITQ) system introduced property rights that concentrated ownership and harmed small-scale fisheries and communities. Meanwhile, the Marshall Decision affirmed Mi'kmaq treaty rights to a moderate livelihood fishery. However, government response undermined these rights by limiting options to property-based agreements. The document argues that a property rights approach is at odds with indigenous rights and highlights Mi'kmaq resistance and alliances with other small-scale fisheries
The document proposes developing a national action plan to implement the right to water and sanitation in Ghana. It provides background on the evolution of these rights under international law and in Ghana. Key issues include only 59% of Ghanaians having access to improved water and 13% to improved sanitation. Bottlenecks to implementing the rights are the financing gap, with only 35% of needed funds invested annually, and some misconceptions that the rights mean services must be free or will open the government to lawsuits. The action plan aims to address these challenges and translate the human rights to reality for Ghanaians.
Inter-State River Water Disputes in IndiaAnmol Utsav
This document discusses inter-state river water disputes in India. It provides background on water resources and river basins in India. The major causes of inter-state river water disputes are uneven distribution of water, increasing demand, and rainfall variability. It outlines some of the major disputes like Krishna, Godavari, Narmada, and Cauvery rivers. Tribunals are established under the Inter-State River Water Dispute Act to adjudicate where negotiations fail. Approaches to resolving disputes include sub-basin division and equitable apportionment. Solutions proposed to improve the dispute process include treating water as a national resource, limiting actors, and establishing time frames and enforcement bodies.
The document discusses India's need to share river water resources through cooperation between states. It outlines reasons for river water disputes such as uneven water distribution and increasing population. River water disputes can arise from actions that affect upstream or downstream states. Disputes are typically resolved through negotiation facilitated by the central government or tribunals. Important inter-state river water sharing disputes and treaties are mentioned. The document advocates for better water sharing to control droughts and floods, utilize water for agriculture, and promote economic prosperity.
The document discusses the history of water policy in the Great Lakes region, leading up to the current Great Lakes Water Compact. It outlines several past intergovernmental agreements from 1909 onwards that attempted to regulate water usage and prevent pollution, most of which failed to achieve their goals due to lack of enforcement. It then examines issues around Chicago's large-scale diversion of water from Lake Michigan in the early 20th century, which caused economic and environmental problems. Finally, it discusses the 1972 Great Lakes Water Quality Agreement and subsequent policies that made progress toward better management and protection of the lakes, culminating in the 2008 Great Lakes Water Compact currently in place.
The document summarizes lessons learned from Christchurch, New Zealand's response to major earthquakes in 2010 and 2011. It discusses:
1) The earthquakes caused widespread damage across Christchurch, destroying infrastructure and claiming 182 lives. A state of emergency was declared.
2) Restoring critical infrastructure like roads, water, and sewage systems was a top priority. This was achieved through a large coordinated effort involving the city, military, and contractors.
3) The military played a key role, providing logistical support, security, and humanitarian aid. However, coordinating their command-and-control style with the city's more collaborative approach required adjustment.
1. Conflict has arisen between India and China over water resources from the Brahmaputra River, as both countries face water scarcity issues. China has begun constructing dams on the river, worrying India about downstream water availability.
2. India is concerned about the impacts on its agricultural economy and flood management. China views the river as an opportunity for hydropower and addressing water scarcity in Southern China.
3. Opportunities for cooperation include existing dialogues, potential water treaties, and joint infrastructure projects that could help equitably manage the shared river basin. However, both countries have competing interests that must be addressed.
The document discusses tensions between India and China over the Brahmaputra River. It flows through both countries as well as Bangladesh. China's proposals to divert the river have concerned India. The search for water resources has been a source of tension since the 1962 war. Climate change is expected to reduce the river's water supply and increase flooding, impacting livelihoods and straining relations between the countries.
Flooding in nigeria and sustainable land developmentAlexander Decker
The document discusses flooding in Nigeria and its impact on sustainable land development, using Delta State as a case study. It finds that recent flooding has negatively impacted land development activities in Delta State. Property values are lower in flooded areas due to lower demand. Land owners also find it difficult to prove land titles in flooded areas as boundaries and landmarks may have changed. The document recommends enforcing building laws and using technology to forecast floods to reduce flooding impacts and enable sustainable land development.
RECENT DEVELOPMENTS IN PLANNING AND LAND USE LAWJesse Souki
This document summarizes recent developments in planning and land use law in Hawaii, including cases from the US Supreme Court, Hawaii Supreme Court, Intermediate Court of Appeals, and new legislation. Key highlights include: the County of Maui v. Hawaii Wildlife Fund case established a case-by-case analysis for Clean Water Act permits; legislative acts established buffers around landfills, prohibited coal power, allowed county inspections of agricultural buildings, and created a school facilities agency.
Beach Nourishment: It's a Good Investment - Conclusion (Part 4 of 4)QuogueBeaches
The document summarizes the key arguments in a debate about the value of beach nourishment projects. It states that while beach erosion has natural causes, human activities like ports and channels also contribute to erosion. Beach nourishment can help mitigate erosion caused by human structures. It also discusses the recreational, environmental, and economic benefits of beach nourishment projects, and argues that nourishment is more cost-effective over time than alternatives like retreating from eroding shorelines. The document concludes that beach nourishment is worth the investment due to these benefits.
This presentation provides an introduction to the human right to water as defined under international human rights law, and its consequences on broader water management and governance.
It was initially developed for a lecture at the UNESCO Center for Water Law - at the University of Dundee - July 2011.
Human right to water & water rights tradingWaterLex
This presentation was given at the University of Geneva to future commodity traders. The implications of a State's recognition of a basic human right to water on water trading schemes is addressed so as to open a discussion on organizational and legal implications as well as associated risks.
Grand theft of global commons (final edited delivery version)Sam Rodriguez Galope
1) The document discusses China's claim over maritime space in the South China Sea through its "nine-dashed line", which encompasses around three million square kilometers, including areas that belong to other countries' exclusive economic zones under international law.
2) It summarizes key aspects of the UN Convention on the Law of the Sea (UNCLOS), which established maritime zones and declared fishery resources beyond countries' exclusive economic zones and mineral resources beyond their continental shelves as "the common heritage of mankind."
3) It argues that China's nine-dashed line claim violates UNCLOS and international law by attempting to claim sovereignty over waters beyond its territorial sea that are part of the global commons, including the area designated
International Journal of Humanities and Social Science Invention (IJHSSI)inventionjournals
International Journal of Humanities and Social Science Invention (IJHSSI) is an international journal intended for professionals and researchers in all fields of Humanities and Social Science. IJHSSI publishes research articles and reviews within the whole field Humanities and Social Science, new teaching methods, assessment, validation and the impact of new technologies and it will continue to provide information on the latest trends and developments in this ever-expanding subject. The publications of papers are selected through double peer reviewed to ensure originality, relevance, and readability. The articles published in our journal can be accessed online
Paper #15 UNCLOS Implications for Africa_ChegeNelson Chege
This document summarizes an occasional paper about the implications of implementing the United Nations Convention on the Law of the Sea (UNCLOS) and addressing environmental issues in African nations. While most African states have ratified UNCLOS, their implementation has been selective, disadvantaging environmental conservation and protection. The paper will examine how some states have overlooked the environment during implementation, despite efforts to establish maritime laws and jurisdiction. UNCLOS aimed to regulate ocean resource use and protect the marine environment, but regulation of pollution has progressed slowly.
This document summarizes the key issues around water allocation in the Nile River Basin and the need for a new legal framework. It discusses the colonial-era agreements from 1929 and 1959 that allocated most of the Nile's waters to Egypt and Sudan, leaving little for upstream countries. It outlines the conflict between downstream and upstream states and argues the current legal regime based on the old agreements is anachronistic and dysfunctional as it does not consider the needs and rights of all riparian states. A new framework is needed that allocates water equitably and sustainably among all states in the basin.
The oceans had long been subject to the freedom of-the-seas doctrine - a principle put forth in the seventeenth century essentially limiting national rights and jurisdiction over the oceans to a narrow belt of sea surrounding a nation's coastline. The remainder of the seas was proclaimed to be free to all and belonging to none. While this situation prevailed into the twentieth century, by mid-century there was an impetus to extend national claims over offshore resources. There was growing concern over the toll taken on coastal fish stocks by long-distance fishing fleets and over the threat of pollution and wastes from transport ships and oil tankers carrying noxious cargoes that plied sea routes across the globe. The hazard of pollution was ever present, threatening coastal resorts and all forms of ocean life. The navies of the maritime powers were competing to maintain a presence across the globe on the surface waters and even under the sea……..
The oceans were generating a multitude of claims, counterclaims and sovereignty disputes.
The hope was for a more stable order, promoting greater use and better management of ocean resources and generating harmony and goodwill among States that would no longer have to eye each other suspiciously over conflicting claims……
On 1 November 1967, Malta's Ambassador to the United Nations, Arvid Pardo, asked the nations of the world to look around them and open their eyes to a looming conflict that could devastate the oceans, the lifeline of man's very survival……..
The Conference was convened in New York in 1973. It ended nine years later with the adoption in 1982 of a constitution for the seas - the United Nations Convention on the Law of the Sea. During those nine years, shuttling back and forth between New York and Geneva, representatives of more than 160 sovereign States sat down and discussed the issues, bargained and traded national rights and obligations in the course of the marathon negotiations that produced the Convention.
The United Nations Convention on the Law of the Sea (UNCLOS) establishes guidelines governing nations' use of the world's oceans. It defines maritime zones such as the territorial sea, contiguous zone, exclusive economic zone, and continental shelf. The convention grants nations rights to resources within their maritime zones while balancing coastal state sovereignty with freedom of the seas. It also addresses environmental concerns and establishes the International Seabed Authority to regulate deep seabed mining beyond national jurisdictions. UNCLOS took effect in 1994 after receiving enough signatures, becoming the governing framework for international marine law.
Chapter OneOne of the most well known examples of how borders ar.docxchristinemaritza
Chapter One
One of the most well known examples of how borders are formed and how they can affect the lives of people occurred during and after World War II. From 1940 to 1944 Germany and Italy invaded the European mainland, to which a large portion of the free world (allied forces) united to drive the invaders out. When World War II ended, the U.S., the U.K. and the Soviet Union divided the occupied lands up, creating defined formal borders. These borders were agreed upon by and were to be maintained by the three countries, however over time the politics of borders and who could and could not cross them became an issue an Germany eventually became a divided country; the East (Russia) and the West (the Free World). This resulted in the Berlin Wall which was a border fence built to keep people in (the East) and those in the West out. What were originally boundaries between occupation forces became barriers to human and commercial traffic and ultimately morphed into a formal border between two, politically and economically divergent countries. The fence between East and West Germany became a physical border, protected with mine fields, wire fence that could only be cut with a torch, guard towers, lights, and armed forces with orders to shoot-to-kill people trying to “leave” rather than potential invading forces. Eventually, in 1989 the Berlin Wall was taken down uniting Germany into one country; the Federal Republic of Germany.
The separation between East and West Germany was a political and economic barrier that has left remnants of “otherness” in some people’s minds. A physical, political, and economic wall had separated people of the same ethnicity, language, and culture for nearly fifty years. Twenty years after that barrier came down there are still political, social, and cultural repercussions.
Our text outlines the difference between barriers, boundaries, and borders. Each has separate and unique functions while all are common components of the modern political and economic lines that separate countries, states, and counties. Natural barriers and boundaries make some of the best borders because of the inherent difficulties in crossing them. Geography is the best example of a natural barrier and therefore natural borders.
· Barrier is a material object that is intended to the block passage of people and/or property. Barriers can include solid walls, electric fences and mine fields.
· Boundary is line (imaginary or physical) that fixes a limit. Boundaries can be political, economic, legal, physical or mental.
· Border is an outer edge, perimeter, periphery, or rim and are commonly used to delineate national and political boundaries.
Geography, such as a mountain range has long been a barrier to movement and in much of the world it still is. Many mountain ranges have acted as natural barriers, boundaries, and borders. An example of this type of border would be the Andes mountains which is a continual mountain range that run ...
Chapter OneOne of the most well known examples of how borders are .docxchristinemaritza
Chapter One
One of the most well known examples of how borders are formed and how they can affect the lives of people occurred during and after World War II. From 1940 to 1944 Germany and Italy invaded the European mainland, to which a large portion of the free world (allied forces) united to drive the invaders out. When World War II ended, the U.S., the U.K. and the Soviet Union divided the occupied lands up, creating defined formal borders. These borders were agreed upon by and were to be maintained by the three countries, however over time the politics of borders and who could and could not cross them became an issue an Germany eventually became a divided country; the East (Russia) and the West (the Free World). This resulted in the Berlin Wall which was a border fence built to keep people in (the East) and those in the West out. What were originally boundaries between occupation forces became barriers to human and commercial traffic and ultimately morphed into a formal border between two, politically and economically divergent countries. The fence between East and West Germany became a physical border, protected with mine fields, wire fence that could only be cut with a torch, guard towers, lights, and armed forces with orders to shoot-to-kill people trying to “leave” rather than potential invading forces. Eventually, in 1989 the Berlin Wall was taken down uniting Germany into one country; the Federal Republic of Germany.
The separation between East and West Germany was a political and economic barrier that has left remnants of “otherness” in some people’s minds. A physical, political, and economic wall had separated people of the same ethnicity, language, and culture for nearly fifty years. Twenty years after that barrier came down there are still political, social, and cultural repercussions.
Our text outlines the difference between barriers, boundaries, and borders. Each has separate and unique functions while all are common components of the modern political and economic lines that separate countries, states, and counties. Natural barriers and boundaries make some of the best borders because of the inherent difficulties in crossing them. Geography is the best example of a natural barrier and therefore natural borders.Barrier is a material object that is intended to the block passage of people and/or property. Barriers can include solid walls, electric fences and mine fields.Boundary is line (imaginary or physical) that fixes a limit. Boundaries can be political, economic, legal, physical or mental.Border is an outer edge, perimeter, periphery, or rim and are commonly used to delineate national and political boundaries.
Geography, such as a mountain range has long been a barrier to movement and in much of the world it still is. Many mountain ranges have acted as natural barriers, boundaries, and borders. An example of this type of border would be the Andes mountains which is a continual mountain range that runs along t ...
This document summarizes an editorial arguing that the Clean Water Act should protect all bodies of water, not just navigable ones. It discusses how two Supreme Court rulings weakened the law's protections. As a result, an estimated 10,000 bodies of water are no longer regulated, putting drinking water and ecosystems at risk. The document also examines arguments against expanded regulation and economic impacts on industries like farming and oil.
Understanding the South China Sea: An Explorative Cultural Analysis.Hans-Dieter Evers
Evers, Hans-Dieter. 2014. "Understanding the South China Sea: An Explorative Cultural Analysis." International Journal of Asia Pacific Studies 10(1):80-95.
The South China Sea has attracted considerable attention among politicians, journalists and scholars since it has become a contested maritime space. Most works concentrate on conflicts and negotiations to resolve the ensuing issues. In this paper, a cultural theory will be applied to stress the importance of conceptions of space found in different cultures. The South China Sea is defined as "Mediterranean." By comparing it to other maritime spaces, like the Baltic and the Mediterranean Sea, lessons will be drawn from the "longue durée" of history, as analysed by French historian Fernand Braudel and from concepts of the cultural theory of Oswald Spengler. The paper will look at the South China Sea from two perspectives. The political perspective will discuss various events that have happened due to political tensions because of territorial demarcations, fishing rights and access to natural resources. Comparing three "Mediterranean seas," I shall argue that Mediterranean seas share certain properties that give rise to tensions and even armed conflict, but also solutions to its problems. The second perspective uses macro-sociology and cultural anthropology to classify and understand actions of the general population as well as political leaders when they ascertain property rights to Mediterranean seas.
The document discusses the territorial disputes over the South China Sea among several countries. There are disputes over small islands and vast underwater energy resources in the sea. China claims most of the sea based on the vague "Nine-dash Line," but an international tribunal rejected this claim. The disputes risk escalating into military conflicts as countries seek to protect their interests in the strategically and economically important waters. Crafting an innovative international agreement will be key to resolving the long-running disputes over the South China Sea.
US-Mexico Transboundary Water Sharing & Human Rights ViolationsAmira Noeuv
The document discusses water sharing between the US and Mexico, human rights violations resulting from their agreements, and considerations for future policies. It summarizes the 1944 Water Treaty between the two countries, which apportions water from the Colorado River and Rio Grande River. However, the treaty neglects important issues like groundwater use and environmental sustainability. As a result, socioeconomically underrepresented communities, immigrants, and indigenous groups on both sides of the border experience human rights violations related to access to clean water. The document calls for policies to address these shortcomings while also considering the treaty's successes and efforts by groups like the International Boundary and Water Commission.
This document discusses the history and development of the United Nations Convention on the Law of the Sea (UNCLOS). It traces the evolution of maritime law from ancient codes and customs to modern international agreements. Key events included Hugo Grotius establishing the principle of freedom of the seas in the early 17th century and UNCLOS being signed in 1982 after over a decade of negotiations. UNCLOS established rules governing territorial waters, exclusive economic zones, the continental shelf, high seas, and international seabed areas. It aimed to create a comprehensive legal framework for the governance of oceans.
Environmental law governs how humans interact with the environment. It aims to protect the environment and set rules for natural resource use. As an environmental lawyer, most opportunities are in advising large businesses on risks, responsibilities, and defending them in litigation. Some opportunities also exist with non-governmental organizations. Environmental law includes command-and-control legislation, environmental assessments, and economic incentives.
How has nursing practice evolved over time Discuss the key leader.docxpooleavelina
How has nursing practice evolved over time? Discuss the key leaders and historical events that have influenced the advancement of nursing, nursing education, and nursing roles that are now part of the contemporary nursing profession.
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INTRODUCTION
ENGLAND is a small island country situated off the northern coast of France. Throughout its
history, the country has been referred to as England, Great Britain, and the United Kingdom.
The official name changes occurred as a result of England’s political union with its
territorial neighbors. For example, in 1707, England and Wales united with Scotland. This
geographic alliance became known as Great Britain. When the southern counties of Ireland
formed the Irish Free State in 1922, the official name of Britain changed again—this time
to the United Kingdom of Great Britain and Northern Ireland.
In this chapter, we are concerned only with the geographical area known as England
and Wales. The reasons for this are quite simple. Scotland is not a common law country;
its criminal justice system consists of a mixture of common and civil law. This was a result
of its political association with France in the sixteenth and seventeenth centuries. Scotland
retained some of the legal characteristics that are indigenous to civil law countries such as
France. Northern Ireland is not included in this study as a result of the problems that exist
between the Protestant and Catholic factions of that country. The serious nature of these
problems, although they are beginning to be resolved, has caused the criminal justice system
to be altered somewhat from the common law system that exists in England and Wales.
England and Wales encompass an area of 58,350 square miles, which is a little larger
than the state of Michigan (see Figure 1.1). Many of the roughly 57 million inhabitants
live in the highly industrialized cities of the country. Although England no longer retains
the industrial supremacy it once possessed, the country continues to be a world leader in
the manufacture of heavy machinery. Agriculture, fishing, and oil are some of England’s
other important industries. The legacy that the people of England have given the rest of
the world is significant and indeed remarkable. The English have made major contributions
in science, philosophy, literature, and the arts, but their most important and striking
contribution to the historical evolution of civilization has been the creation of the common
law and the development of parliamentary democracy.
GOVERNMENT
The foundation for England’s political and legal institutions was established between the
eleventh and fourteenth centuries. It was at this time that the monarchy negotiated several
compromises with the nobility and, in the process, asserted its central authority. Following
the English Civil War, which occurred during the first half of the seventeenth century,
the modern basis for the country’s political institut ...
King John of England signed the Magna Carta in 1215 in response to demands from barons who were unhappy with his harsh rule and frequent tax increases without consultation. The document established certain legal rights and liberties for "freemen" in England. While much of its original text is no longer valid law, clause 29 guaranteeing due process of law is still cited, and the Magna Carta came to symbolize principles of democracy, human rights, and limits on governmental power that have been highly influential worldwide, especially in the development of legal systems like those of the United States and European Convention on Human Rights.
Weights and measures have been essential tools for human societies throughout history. Early systems were based on parts of the human body but became more standardized over time. The English system developed from a variety of influences and became widespread due to British colonial expansion. However, different systems caused issues. The metric system was developed during the French Revolution to establish a single, universal, decimal-based system defined in relation to natural phenomena. It has now been adopted by most countries due to its standardized structure suited for scientific and technical work.
Three Charters of The Virginia Company. http://www.gloucestercounty-va.com Incredible insights into the very beginning of US history from it's English inception. Photos at beginning and end of Jamestown Settlement. http://www.historyisfun.org. Special thanks to Deborah Padgett, Media relations at the Jamestown, Yorktown foundation.
International environmental law developed from traditional bilateral treaties in the pre-1945 era, to the establishment of key United Nations bodies and conventions in the post-1945 era up to the 1972 United Nations Stockholm Conference. This conference marked the beginning of the 'modern era' and led to the creation of the United Nations Environment Programme (UNEP) to coordinate international environmental governance. UNEP works to encourage international cooperation on environmental issues and develop programs for environmental protection and sustainability. The 'post-modern era' began with the 1992 United Nations Earth Summit in Rio de Janeiro, which further advanced international environmental law.
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Born with a Grey Beard: Canada's Navigable Waters Protection Act
1. BORN WITH A GREY BEARD:
CANADAʼS NAVIGABLE WATERS PROTECTION ACT
BY: KRYSTYN TULLY, LAKE ONTARIO WATERKEEPER
Presented at the 6th Canadian River Heritage Conference
Ottawa, Ontario
June 15, 2009
1
2. Introduction
3
The Evolution of the Navigable Waters Protection Act
6
The first years: 1882-2008
6
House Committee Review: February - June 2008
7
The Budget Implementation Act, 2009: January - March 2009
14
Senate Committee Review: April - June, 2009
18
Slippery slope: Why we fear(ed) the new NWPA
22
From a right to a privilege
23
Reducing accountability
25
Politicizing decisions and side-stepping science
26
“Two-tier” environmental protection
28
[Why] Is this an environmental issue?
28
The Bigger picture
33
Who is making the decisions?
33
Who are are governmentʼs “clients”?
35
What is consultation?
36
What is happening to environmental assessment?
37
The Future
39
Appendix A: Consultations
41
Works Cited
46
2
3. Introduction
The simple act of dipping oneʼs paddle into the water and pulling, propelling oneself
forward - such is an act that defines “Canada”.
We use the word “navigation” because we have no other word, at least not in English,
that captures the full meaning of the action. To “navigate” is to be constantly moving,
coming from somewhere and moving towards somewhere else. “Navigation” is an act
of faith that there will be some place waiting for you when you arrive. It is the gift of
living near places of wealth and of being blessed with routes by which you may travel
between them.
Navigation is not a recreational pursuit. It is not an economic pursuit. It is the act of
converting the gifts of oneʼs physical surroundings into pleasure, freedom, wealth, or
survival. Navigation is an act of citizenship.
For two thousand years, to navigate water 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.
The Institutes of Roman Law published in 160 AD legitimize the importance of rivers,
navigation, and public access.1 The Enactments of Justinian, Book II, published in the
early 6th Century AD formally stated that running water belongs to all people and
guaranteed access to waterways, fishing and ports:
1. By natural law the following things belong to all men, namely: air, running water,
the sea, and for this reason the shores of the sea. No one, therefore, is prohibited
from approaching the seashore if he avoids damaging houses, monuments, and
other structures …
2. All rivers and ports are also public, and therefore the right of fishing in a harbor
or in streams is common to all.
3. The shore of the sea extends to the point attained by the highest tide in winter.
4. The public use of the banks of rivers is also subject to the Law of Nations, just
as the use of the river itself is; and hence anyone has a right to secure a vessel to
them, to fasten ropes to trees growing there, or to deposit any cargo thereon, just
as he has to navigate the river itself; but the ownership of the same is in those
whose lands are adjacent, and therefore the trees growing there belong to them.
3
1 Gaius, Gai Institutiones or Institutes of Roman Law by Gaius, 4th ed., E.A. Whitluck, ed., trans. by
Edward Poste (Oxford: Clarendon Press, 1904), online: The Online Library of Liberty <http://
oll.libertyfund.org/title/1154 on 2009-06-10>.
4. The public use of the sea-shore is also subject to the Law of Nations in like
manner as that of the sea itself, and therefore any person has as good a right to
build a house there in which he can take refuge, as he has to dry his nets or to
draw them out of the sea. The ownership of the shores, must, however, be
considered as belonging to no one, but to be subject to the same law as the sea
itself and the earth or sand underneath it.2
This Roman code became the foundation for legal systems that evolved around the
world, including the French Code of Napolean3 and the English common law.
Seven hundred years later, on June 15, 1215, another landmark document was created
at Runnymede, England. Tired of King Johnʼs “extortionate exploitation of his feudal
rights and his ruthless administration of justice”,4 the English aristocracy forced him to
execute a document known as Magna Carta or “The Great Charter”. Magna Carta
(re)affirmed ancient liberties and customs by water5 and guaranteed the free passage of
merchants and man via waterways in accordance with “ancient and lawful customs”.6 It
also pledged the removal of all fish-weirs,7 in order to facilitate navigation.8
While most of Magna Cartaʼs clauses have long since been repealed, the document
itself set limits on royal authority that remain important to this day. Magna Carta
formalized the idea that the king was subject to the law, not above it:
the real legacy of Magna Carta as a whole is that it limited the king's authority by
establishing the crucial principle that the law was a power in its own right to which
the king was subject.9
When Europeans came to North America, they brought with them the legal traditions
and customs embodied in Magna Carta and the Enactments of Justinian. They were
4
2 Samuel Parsons Scott, ed., The Civil Law: Including the Twelve Tables, the Institutes of Gaius, the
Rules of Ulpian, the Opinions of Paulus, the Enactments of Justinian, and the Constitutions (Cincinnati:
The Central Trust Company, 1932), online: <http://webu2.upmf-grenoble.fr/Haiti/Cours/Ak/Anglica/
just2_Scott.htm>.
3 H.S. Boutell, “The Seventh Centenary of the Magna Carta” (1914) 3:2 Geo.L.J. 49, online: <http://
scholar.google.ca/scholar?hl=en&lr=&q=info:dowxeth9aHYJ:scholar.google.com/
&output=viewport&pg=1>.
4 “Treasures in Full: Magna Carta [Treasures], online: The British Library <http://www.bl.uk/treasures/
magnacarta/basics/basics.html>.
5 Magna Carta, s.13.
6 Ibid. at ss.41, 42.
7 Ibid. at s.33.
8 Treasures, supra note 4.
9 Ibid.
5. complemented by First Nationsʼ laws and traditions established here, on this
continent.10 As the Assembly of First Nations notes, the right to navigation is also one of
the longest standing rights in First Nationsʼ laws:
In First Nationsʼ laws, water is understood as the basis for life and social
organization. Maintaining social organization includes maintaining navigational
mobility … First Nations identify rivers as the landʼs arteries. As such, they are,
and always have been, essential to the ongoing survival and well-being of First
Nations. Rights to water and unobstructed waterways are essential to sustaining
life and society and are a prerequisite to the enjoyment of virtually every other
Aboriginal and Treaty right.11
This right flows from pre-confederation customs, as well as treaties between First
Nations and European settlers, the Constitution, and jurisprudence. The Assembly of
First Nations explains:
First Nationsʼ rights to water stem from Aboriginal rights and from the Pre-
confederation, numbered and modern Treaties. All aboriginal title lands (including
reserves) carry paramount rights to the use of water feeding and bordering the
lands. Aboriginal Rights are based on First Nationsʼ traditional use and occupancy
of land and include rights to land, water, resources, culture, language, a livelihood
and self-government. The treaties provide additional clarity on specific rights.
Hunting, fishing, harvesting and trapping rights are included in the treaties. One
specific example is in Treaties 5 and 7, where settlers are granted free navigation
of lakes and rivers and use of shorelines in the First Nationsʼ waterways, thus
granting priority rights to First Nations over settlers.12
With the complementary protections offered by European and First Nations legal
traditions, it is clear that the right to navigate has always been part of the fabric of
Canadian history.
It has been roughly 500 years since European and First Nations customs met, 800
years since Magna Carta and 2,000 years since Roman Times; yet, notions of
navigation, access to waterways, checks on power, and the rights of all people are still
relevant. Collectively, they are the foundation of Canadaʼs legal system. They influence
both legislators and justice officials to this day. For this reason, we cannot discuss
5
10 Unless otherwise specified, terms such as “Canadian law” and “laws” used throughout this paper refer
to both laws rooted in European tradition and First Nations law. Similarly, terms such as “Canadaʼs legal
system” generally include First Nations, the federal government, and provincial governments.
11 Assembly of First Nations, Brief on changes to the Navigable Waters Protection Act (NWPA) to the
Senate Standing Committee on Energy, the Environment, and Natural Resources (May 12, 2009) [AFN]
at 6.
12 Ibid. at 10.
6. issues such as navigation without understanding the history of thought, achievement,
and struggle that came before us.
Yet that is precisely what occurred within Canadaʼs federal government between
February 2008 and June 2009. One of the countryʼs oldest laws, the Navigable Waters
Protection Act,13 was deconstructed and re-written in a manner that demonstrated
profound ignorance of our nationʼs history and culture. The consequences may forever
alter our waterways and our national discourse.
This paper examines the process by which the Navigable Waters Protection Act was
amended, the reasons and trends behind the changes, and some of the flaws with the
process. The paper suggests that fanciful notions of “navigation” and “rights” still matter
in todayʼs Canada. It describes how our collective respect and understanding for the
act of navigation has crumbled and how, in our hurry to “modernize” our laws, our
Parliamentarians have laid the groundwork for two-tier justice and the unnecessary
surrender of wealth.
The paper describes how, unless we make wiser decisions going forward, Canadians
will have ceased to dip our paddles into the water, pulling towards a place worth being.
The Evolution of the Navigable Waters Protection Act
The first years: 1882-2008
The Navigable Waters Protection Act is one of Canadaʼs oldest laws. It was not a
revolutionary law; instead, it drew from tradition, principles of common law, Magna
Carta, and the Code of Justinian that preceded it. In this sense, the NWPA was “born
with a grey beard”.14
6
13 Navigable Waters Protection Act, R.S.C. 1985, c. N-22 [NWPA].
14 This was how author Samuel Johnson described Magna Carta, which also drew from principles and
codes that preceded it. See Bill Shuter, “Tradition as Rereading” in David Galef, ed., Second Thoughts:
A Focus on Rereading (Detroit: Wayne State University Press, 1998) 75 at 81, online: Google Books
<http://books.google.com/books?id=Q6o4FyTAkoUC&pg=PA81&lpg=PA81&dq=%22born+with+a+grey
+beard
%22&source=bl&ots=FLnZEjxPqe&sig=9pHlGmDS3aGdpqsHoOd5nPfLcT8&hl=en&ei=y84iSpTOCuCptg
eI3vG2Bg&sa=X&oi=book_result&ct=result&resnum=2>.
7. The NWPA received Royal Assent on the 17th of May, 1882;15 the original title was An
Act respecting Bridges over navigable waters, constructed under the authority of
Provincial Acts. In essence, the legislation ensured that all bridges that could interfere
with navigation on a waterway must be approved by the highest level of the Canadian
government: the Governor General in council. The Act was modified just three times
between 1882 and 2008,16 when new projects were added to the list of those requiring
federal approvals (including dams, wharves, and causeways).
The creation of a federal statute offered an interesting twist to the ancient tradition of the
right to navigate. On the one hand, the statuteʼs purpose was to create a regulatory
process that would facilitate development projects interfering with navigation. In this
sense, the very existence of the NWPA could be seen as a weakening of the pure right
to navigate. On the other hand, the act suggests that the provinces alone do not have
the authority to interfere with navigation, and that only the highest level of government
could approve a project interfering with navigation. In this sense, the creation of the
NWPA affirmed that the issue is one of national import.
In Canada, as elsewhere around the world, navigation rights were continuously re-
affirmed through legal actions, negotiations, and the passage of complementary
legislation. Here at home, the Canadian Environmental Assessment Act17 strengthened
procedural rights by guaranteeing a public review of all projects that may interfere with
navigation, as well as all bridges, booms, causeways and dams. First Nationsʼ rights
were also clarified and re-stated, promoting consultation and accommodation on
matters such as navigation.18
For one century, the text of the NWPA itself remained substantially unchanged. Then, in
2008, 126 years after the legislation received Royal Assent, the House of Commonsʼ
Standing Committee on Transport, Infrastructure and Communities began hearing
witnesses regarding new navigation protection legislation to replace the NWPA. The
Navigable Waters Protection Act, claimed the government, had not been updated in a
century and was in desperate need of “modernization”.
House Committee Review: February - June 2008
7
15 “An Act respecting Bridges over navigable waters, constructed under the authority of Provincial Acts” in
Acts of Canada, Fourth Session, Fourth Parliament, 45 Victoria, 1882 at 187, online: Google Books
<http://books.google.com/books?id=rAEvAAAAIAAJ&pg=RA1-PA187&lpg=RA1-PA187&dq=%22An+Act
+respecting+Bridges+over+Navigable+Waters
%22&source=bl&ots=gz-7ApMWHf&sig=d4rGc5LgzB5mQg924GILr1PSUH4&hl=en&ei=GaohStygOsSGt
gep3pC_Bg&sa=X&oi=book_result&ct=result&resnum=5>.
16 Transport Canada, (March 8, 2007). The Navigable Waters Protection Act Regulatory Inefficiency - A
Prime Example. Presentation to NRCan Regulatory Efficiency Workshop. Slideshow: slide 3.
17 Canadian Environmental Assessment Act, R.S.C. 1992, c. 37, s.2(1) [CEAA].
18 AFN, supra note 11 at 10 - 11.
8. On February 12, 2008, Transport Canada officials first appeared before the House of
Commonsʼ Standing Committee on Transport, Infrastructure and Communities
(SCOTIC). They described the process by which an individual or corporation obtains
permission from the federal government to develop on or near water in a way that may
interfere with navigation: Transport Canada receives notice of a project, either from
another government department or from the developer. Transport Canada assesses the
waterway, in order to determine if it is “navigable”.19 If the waterway is navigable, and if
the project may interfere with navigation, an environmental assessment is required. If
the project is a bridge, boom, causeway or dam, an environmental assessment is
always required. If the project is unlikely to interfere with navigation, no assessment is
required and the approval is granted.20
According to Transport Canada officials, delays generally accumulated during the
process of trying to establish whether or not a waterway is navigable (and therefore
protected) and during the environmental assessment process. They also stated that the
department receives approximately 5,000 applications each year and that each officer
has “in excess of 100 files they must be working on each year.”21 The backlog of
pending approvals was said to be “impeding both economic growth and the actual
construction of transportation infrastructure, which in turn is putting the government's
“Building Canada” plan at risk.”22 These delays are generally referred to by most
witnesses and officials as the motivating reason for re-writing the NWPA.
In that first appearance before the SCOTIC, Transport Canada spokespeople
recommended extensive public consultation, stating the following:
“The Navigation Protection Act23 impacts a wide range of Canadians and areas …
A report on the consultation efforts, containing recommendations to meet the goals
I have just outlined, would be used as a basis to draft new navigation protection
8
19 “Navigable” was defined generally as any waterway in which a canoe or kayak could be floated. See
House of Commons, Standing Committee on Transport, Infrastructure and Communities, 39th Parliament,
2nd Session (12 February 2008) at 1205 (David Osbaldeston) [SCOTIC, 12 February 2008], online:
Parliament of Canada <http://www2.parl.gc.ca/HousePublications/Publication.aspx?
DocId=3274882&Language=E&Mode=1&Parl=39&Ses=2>.
20 Ibid. at 1200. Note: A very detailed description of this process is also available. See Standing Senate
Committee on Energy, the Environment and Natural Resources, Report Addressing Bill C-10, Navigable
Waters Protection Act (June 2009) [Senate, SCEENR Report], online: http://www.parl.gc.ca/40/2/parlbus/
commbus/senate/com-e/enrg-e/rep-e/rep09jun09-e.pdf.
21 Ibid. at 1145 (David Osbaldeston).
22 Ibid. at 1115 (Marc Grégoire).
23 The proposed new title of the Navigable Waters Protection Act. This issue was not considered to be
“low hanging fruit” by the SCOTIC and the proposal to change the name of the Act was not considered
further.
9. legislation … If the committee does decide to hold consultations, it can count on
the support of Transport Canada experts.”24
When questioned about the proposed cross-country consultations by Mr. Mario
Laframboise (Argenteuil—Papineau—Mirabel, BQ), the Assistant Deputy Minister
(ADM) stated
“Of course we can always draft and table a bill, but traditionally extensive
consultations are held in the case of each piece of draft legislation … Traditionally
that is how we work. For example, the Aeronautics Act, one of the last pieces of
legislation you examined, was the subject of extensive consultations with over 700
groups across Canada … If you did decide to hold cross-country consultations, as
we have seen in the case of different bills recently tabled, then we think you may
have to stop in at least thirty different locations in Canada to consult with groups
about the bill. That may be too much for the committee, but it is not my call.”25
Further discussion between Mr. Brian Jean (Fort McMurray—Athabasca, CPC) and the
ADM clarified the Ministerʼs expectations for the consultation timeline:
Mr. Brian Jean:
I have one question, in essence, and I would prefer to have answers in writing if
they exist. It seems to me that it could take the committee two or three years to do
a good job on this particular act. It just seems like a tremendous, amazing, huge
task. It's 100-year-old or older legislation, and it could take us that long to do the
job right, in my estimation.
Mr. Marc Grégoire:
The minister was kind of hoping you would give him a report by June.
Mr. Brian Jean:
That's nice. I don't know if there are that many hours in the day. 26
The SCOTIC consultation process was brief, and the Ministerʼs June deadline was met.
The list of those parties that submitted written briefs and appeared before the committee
is appended to the June 2008 report of the Standing Committee on Transport
Infrastructure and Communities: witnesses appeared 21 times, representing seven
organizations or departments; briefs were submitted by 27 organizations and one
9
24 SCOTIC, 12 February 2008, supra note 19 at 1125 (Marc Grégoire).
25 SCOTIC, 12 February 2008, supra note 19.
26 Ibid.
10. individual27. On that list, only three briefs and one appearance came from members of
the voluntary sector: Lake Ontario Waterkeeper (appearance and brief), Canoe Kayak
Nova Scotia, and Les Amis de la Rivière Kipawa. As a result, the viewpoints shared
with the Committee skewed towards the perspective of stakeholders with interests
development on or near navigable waters. These included the Canadian Construction
Association, the Western Canada Roadbuilders & Heavy Construction Association, as
well as various provincial and municipal development departments.
Throughout the SCOTIC hearings, testimony and questions focused on the perspective
of the regulated stakeholders. These witnesses pointed to the administrative “burden”
of assessing navigability and conducting environmental assessments, particularly in
areas perceived as remote and for projects perceived as minor. Words such as
“modernizing” and “streamlining” were used frequently.28 For example:
Mr. Jeff Watson:
Are there any other changes you'd want to make to the act? We're looking to
modernize the act-- … I'm asking whether there are any changes that you would
propose. Your brief responds to the seven recommendations of Transport
Canada. I don't necessarily see that what your brief proposes will modernize the
act, only in the narrow cases of inspection and enforcement.
Are there any other ideas you have to modernize the act, beyond just
responding to the seven recommendations? How would you foresee modernizing
it? Or do you want to leave this the way it is essentially?29 (emphasis added)
These terms generally translate into the elimination of some or all government review,
with a tendency towards self-regulation. For example, one Transport Canada witness
suggested that the NWPA is flawed because it does not allow industry to regulate itself:
“There are associations such as the forestry industry, the pipeline industry--they're
out there self-regulating themselves in certain areas, doing their own evaluations
on behalf of other regulating bodies on a regular basis. We'd be willing, and
10
27 House of Commons, “Consideration of Proposed Amendments to the Navigable Waters Protection
Act”, Report of the Standing Committee on Transport, Infrastructure and Communities, by Mervin Tweed,
MP, Chair, 39th Parliament, 2nd Session (June 2008) [SCOTIC Report], online: Parliament of Canada
<http://www2.parl.gc.ca/HousePublications/Publication.aspx?
DocId=3566517&Language=E&Mode=1&Parl=39&Ses=2>.
28 See e.g. SCOTIC, 12 February 2008, supra note 19 at 1115 (Marc Grégoire) (“In keeping with the
cabinet directive on streamlining regulations, we need to ensure in the new act that our departmental
resources are focused on those waters and works that require oversight and provide real value to
Canadians”).
29 House of Commons, Standing Committee on Transport, Infrastructure and Communities, 39th
Parliament, 2nd Session (29 May 2008), online: Parliament of Canada <http://www2.parl.gc.ca/
HousePublications/Publication.aspx?DocId=3532150&Language=E&Mode=1&Parl=39&Ses=2>.
11. they've told us, to take some of that on, but we just don't have the mechanism to
do it within our legislation.”30
Complaints about the antiquity of the legislation, however, were inconsistent. A
Transport Canada witness in one moment criticized the NWPA for being outdated,31
while another Transport Canada witness went on to describe how the courtʼs modern
interpretation of the legislation was the problem:
The Chair:
I think the simple definition, if I understood correctly from the last meeting, was that
if you can float a canoe on it, it's navigable water.
Mr. Marc Grégoire:
That's the decision we have now, imposed by courts. But we think it's too
restrictive.32
The ADMʼs choice of words - “too restrictive” - is illuminating. The actual court definition
of navigable is broader than the definition preferred by Transport Canada. When the
ADM says “restrictive”, he refers not to restrictions on navigation, but restrictions on
development. Whether the NWPA is too antiquated or too modern, the consistent
11
30 SCOTIC, 12 February 2008, supra note 19 at 1200 (David Osbaldeston).
31 Ibid. at 1235 (David Osbaldeston) (“The act of 1882 didn't know anything about smart regulation or
about streamlining regulations. It was looking after rivers as highways and only for commercial
purposes”).
32 House of Commons, Standing Committee on Transport, Infrastructure and Communities, 39th
Parliament, 2nd Session (28 February 2008) [SCOTIC, 28 February 2008] at 1255, online: Parliament of
Canada <http://www2.parl.gc.ca/HousePublications/Publication.aspx?
DocId=3312419&Language=E&Mode=1&Parl=39&Ses=2>.
12. theme is that the regulatory process interferes with development by industries such as
aquaculture33 and forestry,34 as well as government-sponsored infrastructure projects.
Throughout the SCOTIC hearing process, only one solution - amending the legislation -
was considered. There was some debate as to whether the amendments should focus
on “low hanging fruit”35 or to be more thorough. In the end, the Committee and
Transport Canada officials proceeded with “low-hanging fruit”. At one point during the
first session, Mr. Brian Masse (Windsor West, NDP) did ask a Transport Canada
witness whether hiring more staff - even for the short-term - would address
administrative challenges. The witness replied:
“For purposes of hiring, to bring on the numbers of staff we would need to deal
with this load would take us a year or a year and a half. We don't need to meet
that load if we change the legislation. We don't need to have excess staff on
board once the legislation is changed. We need to have a reasonable
complement to do what Canadians expect and to deal with the new responsibilities
that the act would bring to us.”36
Increased staffing was never proposed or considered in any meaningful way during the
rest of the SCOTIC hearing process.
The focus on the interests of vested stakeholders reflects the limited number of
witnesses and the homogeneity of their issues. It is possible that, had more extensive
12
33 SCOTIC, 12 February 2008, supra note 19 at 1115 (Marc Grégoire) (“Significant delays have been
experienced in the approval of new aquaculture sites”).
34 Ibid. at 1255 (David Osbaldeston) (“Suppose MacMillan Bloedel wants to go into a piece of New
Brunswick. They're going to cut here this year, and it's away out in the boonies someplace. It's three
hours from anybody. In the past they used to come in and say they were going to clear-cut up here, and
were there any navigational concerns? They'd show us their boundaries. We'd take a quick look at it and
we'd say no--just go. They'd go in and they'd do their thing with their temporary bridges. They'd pull
whatever they had out and they'd move on for the next year. That's one company. Then came the
introduction of ISO standards. ISO certifications require all these companies, in order to maintain their
certification, to prove they've got all their required approvals, permits, and certifications in place and to
produce them. All of a sudden we start having these guys show up with 3,000 applications in hand,
saying now they need us to produce 3,000 pieces of paper for them on waterways that for the most part
would be covered under these minor waterways that nobody's ever going to put a canoe or a kayak on.
In one case we went with the Forest Products Association of Canada by helicopter two hours north of
Prince Albert and landed on the bridge. I looked under the bridge and I said, “The water's absolutely
navigable, but other than your lumber trucks, who's up here?” There is nobody around for 300 to 400
miles”).
35 Senate, Standing Committee on Energy, the Environment and Natural Resources, 40th Parliament, 2nd
Session (23 April 2009) [Senate, SCEENR, 23 April 2009] at (Mr. David Osbladeston), online: Parliament
of Canada <http://www.parl.gc.ca/40/2/parlbus/commbus/senate/Com-e/enrg-e/04ev-e.htm?
Language=E&Parl=40&Ses=2&comm_id=5>.
36 SCOTIC, 12 February 2008, supra note 19 at 1155 (David Osbaldeston).
13. consultations been undertaken, the tone and the analysis would have shifted. As Mr.
Mario Laframboise (Argenteuil—Papineau—Mirabel, BQ) noted in the first hearing,
cross-country consultations may have attracted a different group of witnesses:
However, given that you reject anywhere from 1,000 to 2,000 applications each
year, environmental groups will be asking me to intervene on their behalf. I
wonder if you really want to stir everything up. I do not have a problem with
consulting people. Really, I would be happy to do that. But seriously, there are
groups listed here — associations like the Transportation Association of Canada —
that could send representatives here to Ottawa. If we decide to travel, then we will
need to hear from everyone, including those who asked you to intervene. Often
these are environmental groups.37
After hearing (orally and in writing) from 27 organizations, including the three NGOs, the
SCOTIC wrapped up hearings on June 10, 2008. The Committee Chair submitted a
report to Parliament on June 12, 2008. The report reflected the submissions of
Transport Canada officials, recommending the following:
๏ Exclude “minor waters” from the NWPA
๏ Define “navigable water”
๏ Exclude “minor works” from the NWPA
๏ Remove the four “named” works from the NWPA (thereby eliminating mandatory
review of bridges, booms, causeways and dams)
๏ Ensure that other environmental assessment triggers are not done away with or
impeded
๏ Increase fines
๏ Take into account international obligations regarding removal of wrecks and
derelict vessels
๏ Define inspection powers
๏ Include a five-year review clause38
The report also pledged to conduct public consultations in the future:
We would also note that this is the first stage in our process dealing with
amendments to the NWPA. Once we receive the governmentʼs proposed
amendments we will be undertaking further consultations on this piece of
legislation.39
Neither the SCOTIC nor Transport Canada ever again engaged in formal consultation
on the NWPA. Exactly one year later, on June 11, 2009, the Standing Senate
Committee on Energy, the Environment, and Natural Resources is to submit its own
13
37 SCOTIC, 12 February 2008, supra note 19 at 1140.
38 SCOTIC Report, supra note 27.
39 Ibid. at 5.
14. report on the NWPA.40 This time, the Committee report will examine how, through the
Budget Implementation Act of 2009, sweeping changes have already been made to the
NWPA.
The Budget Implementation Act, 2009: January - March 2009
How did we get from “this is the first stage” and “we will be undertaking further
consultations” to a dramatically new NWPA in just one short year? What happened to
public consultation? And what could it all mean for Canadaʼs rivers?
The first deferment of public consultation occurred when an election was called in
September, 2008. From September 7 through October 14, no formal consultation
occurred because of the federal election. The second deferment of public consultation
occurred when Parliament was prorogued from December 4, 2008 through January 26,
2009.41 A new budget was introduced on January 27, 2009 as soon as Parliament
resumed. The budget bill included amendments to the NWPA. Transport Canada and
SCOTIC did not consult on these revisions to the Act because, being a budget bill, the
matter was now the responsibility of the Department of Finance. Furthermore, budget
bills are traditionally accompanied by greater confidentiality and secrecy than other
bills.42
Part 7 of the Budget Implementation Act, 2009 contained dozens of amendments to the
NWPA. Under the new Act, classes of “minor” works and “minor” waterways could be
created by Ministerial order; similarly, the Minister is granted power to alter remove
works at any time. These minor works and works on minor waters would be exempt
from the environmental assessment process. The orders themselves would be exempt
from public scrutiny, including parliamentary review and pre-publication in the Canada
Gazette. The new NWPA also suggests regulation- and order-making authority to
Cabinet. This could further reduce public scrutiny, as decisions made at the Cabinet
level are traditionally exempted from requests made under the Access to Information
Act.
Because the Budget Implementation Act, 2009 was a confidence bill, a vote against the
NWPA amendments would be a vote against the government itself. If the bill was
defeated, the government would also be defeated. These unique circumstances stifled
meaningful debate about the legislation. This politically-charged atmosphere dominated
14
40 Senate, Debates of the Senate (Hansard), 146:19, 40th Parliament, 2nd Session (12 March 2009)
[Senate Debates, 12 March 2009] at 1405 (Hon. James Cowen), online: Parliament of Canada <http://
www.parl.gc.ca/40/2/parlbus/chambus/senate/deb-e/019db_2009-03-12-E.htm?
Language=E&Parl=40&Ses=2>.
41 Personal Communication from David Osbaldeston to members of the Canadian Environmental Network
(3 March 2009).
42 Ibid.
15. the House of Commonsʼ Standing Committee on Financeʼs brief, two-day review of the
Budget Implementation Act. On February 23, 2009, for one-and-a-half hours, the
committee heard from the Department of Transport, four non-governmental
organizations, and one individual regarding the new NWPA. A Department of Transport
official concluded his opening remarks with the following statement:
In closing, I'd like to say that a modernized act will help us do a much more
effective job of protecting the public interest in navigable waters, while at the same
time expediting the infrastructure growth and redevelopment required today.
Without them, we will continue to experience delays in approval of critical
infrastructure projects. Our desired result is to stimulate the economy and remove
the unnecessary regulatory burden while continuing to provide the due diligence
with respect to the administration of this act.43
Mr. Thomas Mulcair, NDP later responded with the following:
… I must start off by saying that I have the greatest respect for the civil service.
Having spent more than 30 years in the public service, half of it as a civil servant,
including being chairman of a large regulatory agency, and half of it as an elected
official, I can say that I know the difference between the two. I don't think … that
you know the difference between the two, and I say that with respect.
If you enjoy the game of politics, have the courage to put your face on the
telephone poles and get yourself elected. Tonight you came into this committee
and did something that none of us has ever seen before. I have never, in over 30
years, seen a civil servant come before a committee and deliver with such a purely
partisan mind. When you have the temerity to come before us and say that there's
nothing in here that removes environmental protection, you're simply not telling the
truth. It is not true that there's a tiered approval process in here. It's a complete
change in the whole regulatory structure. All the enabling provisions under this
statute will be changed to give … pure discretion here in Ottawa.
Now, I don't doubt your good intentions, but I am telling you that what you told this
committee about the effect of this legislation is not true.
Coming here and pleading the backlog of cases as an excuse to go on and on
about the more flexible process is a purely partisan political argument and has
nothing to do with the facts. Saying that you're here to streamline is a purely
partisan political argument that has nothing to do with the facts. Saying that
financial opportunities are being lost is their line. They're elected. They put their
pictures up on telephone poles and they were elected to do a partisan political job.
You didn't.
15
43 House of Commons, Standing Committee on Finance, 40th Parliament, 2nd Session (23 February
2009) at 1935 (David Osbaldeston), online: Parliament of Canada <http://www2.parl.gc.ca/
HousePublications/Publication.aspx?Language=E&Mode=1&Parl=40&Ses=2&DocId=3690072&File=0>.
16. …
I don't agree with the fact that an officer of the civil service—un grand comis de
l'État, as we would say in French—should be used to come in here and spin a
purely partisan political line. I don't agree with that at all.
The following morning, during day two of the FINA review, Mr. Mulcair moved that each
clause in Part 7 of the Budget Implementation Act be repealed. The committee
defeated him on each vote, and by mid-day, the Act had passed committee review and
been sent back to the House of Commons.44 By March 4, 2009, the Act had passed
Third Reading in the House of Commons and First Reading in the Senate.
The Senateʼs sober second thought: March 2009
When the Budget Implementation Act, 2009 reached the Senate, political tension
escalated. Upset that the Senate was expected to approve the budget bill quickly,
Senators from various parties rebelled. The Liberal chair of the National Finance
Committee made headlines on March 2, 2009 when he expressed his unwillingness to
rush the bill through review:
“The bill amends 42 statutes, itʼs over 500 pages long. The Senate will not deal
with that in two or three days. We will not,” said Liberal New Brunswick Senator
Joseph Day, who chairs the National Finance Committee.
…
“Weʼve got to do our job. What do you think those people who are affected by the
Competition Act, that are affected by the Navigable Waters Act, that are affected
by womenʼs equity pay, what do you think they would feel about the Senate if we
just said, ʻOh weʼve just got to be the other side of the coin of the House of
Commons and rubber stamp this thing? Why are we here?” he said. “Weʼre
looking at it legally and regionally and the impact on minorities. Thatʼs our job.”45
Another Liberal Senator, Tommy Banks, expressed his concerns that rushing through a
budget bill with amendments to acts such as the NWPA attached to it would be unwise.
He called it a “disembowelling” of Parliament and suggested that the Senator will not
know what the amendments are, what they do, or what their consequences may be.46
16
44 House of Commons, Standing Committee on Finance, 40th Parliament, 2nd Session, Meeting 10 (24
February 2009), online: Parliament of Canada <http://www2.parl.gc.ca/HousePublications/
Publication.aspx?Language=E&Mode=1&Parl=40&Ses=2&DocId=3704561&File=0>.
45 Bea Vongdouangchanh “Senate wonʼt rubber stamp $258.6-billion budget, say Liberals” The Hill Times
(2 March 2009), online: Lake Ontario Waterkeeper <http://www.waterkeeper.ca/2009/03/02/senate-wont-
rubber-stamp-2586-billion-budget-say-liberals/>.
46 Senate, Debates of the Senate (Hansard), 146:16, 40th Parliament, 2nd Session (5 March 2009) at
1630 (Hon. Tommy Banks), online: Parliament of Canada <http://www.parl.gc.ca/40/2/parlbus/chambus/
senate/DEB-E/016db_2009-03-05-e.htm?Language=E&Parl=40&Ses=2#45>.
17. Similarly, Senator Lowell Murray, appointed by the Progressive Conservative Party,
argued that the public had a right to be consulted:
With regard to the proposed amendments to the Navigable Waters Protection Act,
honourable senators have had hundreds of e-mails from Canadians concerned
about access to waterways that they believe they are about to lose. We have also
heard from organizations representing most of the major watersheds from the
Fraser in British Columbia to the Petitcodiac in New Brunswick. I do not pretend
and I do not think many of us can pretend to be able now to judge the force or
validity of their arguments. What I do say is that they have a right to be heard.
Some Hon. Senators: Hear, hear!
Senator Murray: In the interests of sound public policy and, indeed, in the interests
of the democratic values we espouse, we have a duty to hear them. Their
concerns about adverse legislation should not be brushed aside by sneak attack,
which is what happens when extraneous measures are forced through in an
omnibus budget implementation bill.47
The response to these concerns was consistently the same: the economic crisis facing
the country required haste. Conservative Senator Consiglio Di Nino put it this way:
Let me begin by putting the need for quick passage of this bill into context. As we
all know, Canada is in the midst of a severe global recession — a recession that
no one accurately predicted; a recession that requires unprecedented,
extraordinary action to be taken if we are to reduce the negative impact, indeed
the pain, of this global crisis.48
For a while, it appeared as though the Senate might split the budget bill into two parts.
The first part would include those sections directly related to fiscal measures. The
second part would include the NWPA amendments, as well as other controversial
amendments relating to competition, employment compensation and other matters.
This approach would allow the Senate and the House to pass the desired economic
stimulus measures quickly, while ensuring more thorough scrutiny of the more
controversial parts. At the same time, it would avoid triggering a vote of non-
confidence.
After two weeks, the resistance ended when then-Interim Leader of the Liberal Party
Michael Ignatieff “reversed course abruptly” and urged Senators to rush through the
17
47 Ibid. at 1540.
48 Ibid. at 1435 (Hon. Consiglio Di Nino).
18. budget bill. (He cited concerns about delays to Employment Insurance benefits.)49 The
budget bill was never split into two. The Senate did, however, pass a motion
authorizing the Standing Senate Committee on Energy, the Environment, and Natural
Resources to examine and report on “those elements dealing with the Navigable Waters
Protection Act.”50
On March 12, 2009, An Act to implement certain provisions of the budget tabled in
Parliament on January 27, 2009 and related fiscal measures (a.k.a., the Budget
Implementation Act, 2009) passed the Senate. It received Royal Assent the same day.
The new NWPA was born.
Senate Committee Review: April - June, 2009
Between April 23, 2009 and June 4, 2009, the Senate Standing Committee on Energy,
the Environment and Natural Resources held nine hearings. They heard from 32
people representing 19 organizations, departments or individuals. Nine of the
organizations that appeared were from environmental and paddling communities, three
from the First Nations, two from the federal government, two from industry, one from
provincial government, one from municipalities, and one individual.
The process was unusual in that the Budget Implementation Act had been passed, so
the purpose of the review was not to inform a specific vote or decision. As Senator
Elaine McCoy (Alberta) so neatly put it, “the bad news is: we have no executive power
and the Senate cannot make it right by ourselves.”51 The Committeeʼs job was to
“examine and report” on the NWPA amendments contained in the budget bill. The
general aim was described by the committee chair at its first meeting:
While many of the amendments to the act appear to be attempts to modernize and
update the legislation, there are apparently several substantive changes to its
provisions in addition.
We are pleased to begin our series of meetings on this subject. We intend to drill
down and get the full story.52
For the most part, the information presented by Transport Canada was similar to that
presented at the FINA and SCOTIC hearings. When concerns were raised about
18
49 “Liberal, Conservative senators unite to pass budget bill” The Canadian Press (13 March 2009), online:
Lake Ontario Waterkeeper <http://www.waterkeeper.ca/2009/03/13/liberal-conservative-senators-unite-to-
pass-budget-bill/>.
50 Senate Debates, 12 March 2009, supra note 40 at 1405. The Committee was instructed to present its
final report no later than June 11, 2009.
51 Hon. Senator Elaine McCoy, “NWPA: Reporting Out”, Hullabaloos (12 June 2009), online: http://
www.albertasenator.ca/hullabaloos/printerfriendly.php?article=411.
52 Senate, SCEENR, 23 April 2009, supra note 35 (Hon. W. David Angus).
19. inadequate consultation, it was suggested by different people over the course of the
hearings (witnesses, government officials and Senators) that consultation occurred
when the SCOTIC prepared its 2008 report and/or that consultation was impossible
because of the economic crisis and the nature of the budget process. In response to
concerns about environmental assessments, Transport Canada representatives
attempted to reassure Senators that environmental assessments for major projects
would still occur (if not conducted by Transport Canada then conducted by other federal
or provincial departments). Transport Canada officials also assured the Senators that
the publicʼs right to navigation would still be protected under the NWPA.53
Representatives from the not-for-profit sector generally disputed each of these
assertions.
The tone of the hearings shifted at the Senate committee. With the budget bill passed,
proponents of the new NWPA defended the changes. Others expressed concerns
about the substance of the changes or the about the process by which the NWPA was
re-written. As Senator Murray suggested (above), it was entirely possible for one to be
concerned about the process, while still finding that the new NWPA is a reasonable
document.
Transport Canada officials frequently referred to the economic crisis, both to explain the
need for the new NWPA and to justify the rushed process. At a hearing on May 7, 2009,
however, it was established that the changes to the NWPA had been in the works for
quite some time:
Senator Banks: I have one further question, Chair. Ms. Tully, I want to make sure
I understood what you said because this is very important to me. You said that
the proposed changes in the Navigable Waters Protection Act were in the minds of
people before the economic crisis became evident.
Ms. Tully: Yes.
Senator Banks: Would I infer that the insistence of some folks that the urgent
necessity of these changes are due to economic stimulus is sophistry?
Ms. Tully: I would say it certainly is confusing and there is conflicting information.
We have an access to information request to try to get the background materials,
but we are having a hard time getting those. We do have some slideshow
presentation and some materials from the Department of Transportation dating
back to 2007, at least. When I appeared before the Transport Committee a year
ago, it was at the invitation of the committee and they had a memo that said – I
cannot remember – it may be seven different issues that they were looking at.
Therefore, what the Navigable Waters Protection Act looks like now is virtually
identical to what they were proposing to do a year ago.
19
53 See e.g. Ibid. (Donald Roussel, Director General, Marine Safety, Transport Canada).
20. Senator Banks: Nobody knew there was an economic crisis coming a year ago,
right?
Ms. Tully: Not to my knowledge.54
At a later meeting, the Committee chair acknowledged that the NWPA amendments had
been part of a longer, fifteen-year process.55
Representatives of industry came forward to express their concerns that the new NWPA
still failed to provide the kind of regulatory clarity that the sought. They generally
support the kind of “modernized” and “streamlined” regulatory approach that would
minimize “red-tape” and facilitate development in and around waterways; the solution to
their concerns, however, may not have been exactly what emerged under the new
NWPA. Ron Kruhlak appeared before the committee on May 26, 2009. Mr Kruhlak is
an Alberta-based lawyer who represents industry on energy, mining, and water
applications:
Senator McCoy: … To follow up on some of these questions, in terms of your
experience dealing with the Navigable Waters Protection Program and approvals
needed thereunder, one of the outcomes I hear you wish for is knowing how long it
will take to get an approval. One of my first questions is: In the new act, is there
anything there that gives you that assurance?
Mr. Kruhlak: Not that I have seen, senator.
Senator McCoy: Another of your criteria for an effective regulatory process, it
seems to me, was some degree of certainty, which, certainly when I was practicing
or administering regulatory law, it was knowing what criteria were going to be
applied in coming to a decision for an approval.
Is there anything in the new act that gives you any indication of what criteria there
will be applied by the Navigable Waters Protection Program in coming to a
decision as to whether you will get approvals?
Mr. Kruhlak: I do not think the amendments go that far to give you that
predictability. Some of the consultants I have worked with have said: If you just
told me that for this type of crossing, these are the ingredients you would expect to
see for an appropriate crossing, then we will design a project that meets those
clearly off the start.
20
54 Senate, SCEENR, 23 April 2009, supra note 35.
55 Senate, Standing Committee on Energy, the Environment and Natural Resources (26 May 2009)
[Senate, SCEENR, 26 May 2009], online: Parliament of Canada <http://www.parl.gc.ca/40/2/parlbus/
commbus/senate/Com-e/enrg-e/47247-e.htm?Language=E&Parl=40&Ses=2&comm_id=5>.
21. Again, there may be some technical discussions that the department offers. With
the actual applicants, the consultants who put that together, it tends to be more
technical than legal, but I have not seen that type of clear guideline.
Senator McCoy: That testimony corroborates the testimony of one of those
technical-type people, and that was Mr. Middleton from Alberta Transportation.
Mr. Kruhlakʼs statements highlight one of the themes that ran through the NWPA
amendment process, from 2008 through 2009: Is this an administrative problem, a
legislative problem, or some combination of both? By neglecting to examine this one
year earlier, during the SCOTIC hearings, decision-makers failed to identify a rational
list of solutions to the problems identified by Transport Canada, industry stakeholders,
and the ordinary citizen. What is more, the hurried and limited consultation that did
occur failed to resolve industryʼs concerns and placed Transport Canada officials on the
defensive. Meanwhile, the public at large is concerned about the substance of the
changes, as well as the hurried secrecy of the amendment process. This is the story
that the Senate Standing Committee on Energy, the Environment and Natural
Resources heard.
It is not the story that one gleans from the Senate Committeeʼs final report, released
June 11, 2009.56 There were two challenges with the Senate committee structure that
may have impacted the substance of its report. First, due to the limited number of
hearing dates, not every individual or organization who wished to participate had an
opportunity to do so. Second, due to the structure of the committee process, witnesses
and government officials were not required to provide evidence to support their
arguments or be subject to examination or rebuttal. It was not at all uncommon, for
example, to hear a government official state on one day that the right to navigate is
intact and to hear a non-government witness state on another date that the right to
navigate is imperiled. One government spokesperson stated repeatedly that the public
had been “misinformed”,57 re-framing the contradictions in a way that suggested
government information is inherently more reliable than information from the public at
large. In the face of contradictory information, Senators had two options: accept all
information on its face, giving equal treatment in the final report. Or, decide which
speakers were more credible, essentially deciding who do they most trust.
The report takes a middle road. Its eighteen pages describe the history of the NWPA,
the environmental assessment process, and the changes to the legislation. The
“Observations and Recommendations” section of the report summarizes the main
technical concerns with the new NWPA presented during the hearing process. The
report is detached in tone and does not generally make any judgements on matters of
fairness, rights, or policy. The report does make the following four recommendations:
21
56 Senate, SCEENR Report, supra note 20.
57 Senate, SCEENR, 23 April 2009, supra note 35 (David Osbaldeston).
22. 1. The committee recommends that Transport Canada develop and implement an
effective communication strategy and consultation process to seek the views of
waterway stakeholders on any future amendments to the Act, including any
changes to regulations, and during the five year review of the Act.
2. That the Navigable Waters Protection Program develop regulations to replace
the Ministerial Order of May 9, 2009.
3. That Transport Canada amend relevant sections of the NWPA using a process
outlined in section 32 of the Canada Shipping Act, 2001 for incorporating reference
materials.
4. That the federal government ensure adequate resources are made available to
the Navigable Waters Protection Program so that it can better meet its economic
targets for infrastructure development and reduce the delays for larger projects
while maintaining its responsibility to protect the public right of navigation.58
The Senate Committeeʼs report is significant, even in its brevity. By virtue of its
recommendations, the Committee recognizes precisely the concerns that the public
raised: yes, consultation was flawed; yes, the new NWPA provides too much
discretionary power to the Minister of Transportation; and yes, administrative solutions
are still needed.
Unless the NWPA is revisited in a future session of Parliament, the next official review
will be in 2014, five years from now.
Slippery slope: Why we fear(ed) the new NWPA
Lake Ontario Waterkeeper is one of eight Waterkeeper organizations in Canada and
nearly 200 around the globe. We are a grassroots movement of independent public
interest organizations dedicated to clean water and strong communities. Our goal is to
restore and protect swimmable, drinkable, and fishable waters for every person in every
community.
Our vision of a swimmable, drinkable, fishable Canada is rooted in our respect for the
environmental rights that have protected communities and individuals for thousands of
years. These rights transcend legal systems, cultures, and continents. Lake Ontario
Waterkeeper, with the support of our seven Canadian Waterkeeper affiliates, expressed
concerns about the new NWPA at every stage of the process.
We were not the only ones to speak out. From coast-to-coast, non-governmental
organizations, individuals, commercial outdoors interests, and many others voiced
concerns about the new NWPA. The names of the individuals and organizations are too
22
58 Senate, SCEENR Report, supra note 20, “Executive Summary” at IV.
23. numerous to list; virtually every outdoors, environmental, and conservation organization
in the country spoke out, as well as thousands of individuals.Very few were given
opportunities to speak formally to decision-makers.59
There were four main objections to the new NWPA, consistent from 2008 through 2009.
First, the new NWPA could transform a citizenʼs “right” to navigate into a “privilege”.
Second, the new NWPA eliminates much of the transparency in the decision-making
process, thereby undermining accountability. Third, the increased reliance on
discretionary decision-making politicizes what was once a scientific process. Fourth,
the new NWPA creates two tiers of environmental protection; depending on who you are
or where you live in Canada, your waterways may receive more or less protection than
another communityʼs waterways. Many of these concerns were validated by the Senate
Committeeʼs report of June 2009.
From a right to a privilege
Throughout the consultation process, the idea that navigation is becoming a privilege in
Canada was hotly contested. Transport Canada officials repeatedly assured the public
and Parliamentarians that the new NWPA still upheld the right of navigation. The issue
is not that clear, however.
First and foremost, as with most areas of law, experts and arm-chair critics can say
what we want about the matter. It is only when arguments are tested in a court,
however, and an official decision is handed down that the issue is clarified. At this
stage, all opinions are just that - opinions.
The “right” to navigate is linked inextricably to the notion of rule of law. From Ancient
Rome through middle-ages England, the idea that even emperors and kings must follow
certain rules has had a profound impact on different societies. Governments do not
own public resources; these resources are managed in trust for the people, and
governments are subject to rules about what they can and cannot do. In Canada,
because of our European and our First Nations traditions, our waterways are the
peopleʼs domains. The NWPA gave the federal government the ability to interfere with
navigation, but only when certain procedures were followed: the public had to be
notified; a written decision had to be made; terms and conditions could be imposed, and
so on.
First Nationsʼ rights are separate from and additional to the individualʼs right to navigate.
In its submission to the Senate committee, the Assembly of First Nations expressed
concerns that the changes to the NWPA “threaten First Nationsʼ Aboriginal and Treaty
Rights”. The Assembly recommended that new clauses be added offering explicit
guidance on Aboriginal and Treaty Rights, since such requirements are currently absent
from the NWPA. The Assembly also described numerous ways that decisions made
23
59 Those organizations and individuals are listed below in Appendix A.
24. under the NWPA could impact First Nationsʼ rights, noting that these rights “prevail over
all other matters.”60
The main feature of the Canadian system was that the government had to go to the
people every time it allowed one interest to interfere with navigation. Under the new
NWPA, this is no longer the case. Because classes of works and classes of waterways
no longer require government approval, it is now possible to interfere with navigation in
Canada without public consent. The onus has shifted from the developer to the private
individual. Where once the developer had to prove that a work would not interfere with
navigation, now the private individual must prove that a work will interfere with
navigation. Without requiring public notice, an individual or First Nations community
may not even know about a work before it is constructed, let alone assemble a case
proving its impacts on navigation.
Going to the people before making a decision served two theoretical purposes. The
action allowed those who might be directly affected by the proposal to make a comment
and improve the decision. It also served as a constant reminder that navigable
waterways are the peopleʼs waterways, that governmentʼs role was to facilitate - but not
control - different uses of those waters. The first purpose is fairly easy to understand.
The second is more abstract, more conceptual. It also has important consequences of
our culture and for the evolution of our decision-making systems. What happens if
industry stakeholders and Transport Canada officials forget that they do not own
Canadaʼs waterways? What happens if they come to believe that their interests are
paramount? What kind of arrogance could this breed in succeeding generations of
decision-makers? And what could be the consequences for our nationʼs waterways?
It is true that the first Ministerial Order issued under the NWPA does not embody our
worst fears. For the most part, it identifies “minor” works and “minor” waters that are
relatively non-controversial.61 This has no bearing, however, on whether or not the new
NWPA is open to abuse soon, or in the distant future.
Our fears - speculative as they may be - deepened as the NWPA changes were pushed
through. At very few points in the process did any officials or decision-makers
demonstrate respect or empathy for the publicʼs concerns. Throughout the process,
requests for meetings and hearings went unanswered. Decisions were made behind
closed doors. As one witness before the Senate so aptly stated:
Certainly, people who follow this legislation closely would expect to see changes to
the NWPA as a stand-alone bill. The way in which changes to the legislation came
24
60 AFN, supra note 11 at 11.
61 Ministerial Order (Hon. John Baird, Minister of Transport), C. Gaz. 2009.I.1403 (Minor Works and
Waters (Navigable Waters Protection Act) Order), online: Canada Gazette <http://gazette.gc.ca/rp-pr/
p1/2009/2009-05-09/html/notice-avis-eng.html#d103>.
25. out would give rise immediately to concerns that there is an attempt to pass
something surreptitiously.62
Fear, speculation, and lack of transparency are hardly the hallmarks of an appropriate
decision-making process when it comes to a matter of ancient rights. Proponents of the
new NWPA could have done so much more to ease our fears about the loss of the right
to navigate. The process by which the law was changed and the process by which
approvals would be issued under the Act could have been both efficient and
transparent. Instead, Transport Canada officialsʼ reassurances are undermined by the
secrecy of the decision-making process and the exemptions from Parliamentary and
public review contained in the legislation. More interest was shown in with-holding
information from the public and from Parliament, than was shown in protecting an
ancient right. New powers were given to the Minister, while simultaneously opportunities
for public, First Nations, and Parliamentary oversight were reduced or eliminated.
Another tell-tale sign that our rights were in question came early on in the process. At
the first hearing before SCOTIC back in 2008, Transport Canada officials expressed
their desire to change the name of the legislation from the Navigable Waters Protection
Act to the Navigation Protection Act.63 In essence, their aim was to streamline the
decision-making process by protecting certain aspects of existing navigation, rather
than navigable waterways themselves. This proposal could have changed the
legislation such that it no longer protected all waterways upon which some form of
navigation could occur, either now or in the future.
This, at its heart, is the right to navigate in Canada: we donʼt know who you are, where
you are going, or which waterways you will want to use … but when you need them,
they will be there waiting for you. Under Transport Canadaʼs proposal, if you do not
exist today, are not using waterways for specific set of uses, and are not known to the
government, your protections may slip away. The difference between “navigable” and
“navigation” is more than mere semantics; it is the difference between a right and a
privilege.
Reducing accountability
One of the hallmarks of accountable government is transparent decision-making.
Transparency includes providing notice when decisions are being made, publishing
written decisions that can be read and studied, identifying the decision-makers,
respecting for access to information laws, and participating in traditional Parliamentary
processes. The new NWPA offers few of these accountability measures.
In theory, accountability has very little to do with creating opportunities for political
enemies or angry citizens to cry “gotcha!” Accountability is about making the best
25
62 Senate, SCEENR, 26 May 2009, supra note 55 (Ron Kruhlak, Partner, Group McLellan Ross LLP).
63 SCOTIC, 12 February 2008, supra note 19.
26. possible decisions today and in the future. Criticism and consultation may involve
debate, but they are also part of a collaboration that ensures the best possible
information is brought forward. It is never cynical to advocate for accountability.
The new NWPA reduce transparency by eliminating Parliamentary oversight and public
notice for regulations and orders. It facilitates decision-making out of reach of the
Access to Information Act. These changes are discussed above. It may reduce
dramatically the number of federal environmental assessment processes that
communities typically appreciate and industry typically bemoans. This is discussed
below. The new NWPA also delegates much decision-making to unnamed officials at
Transport Canada. As Mark Mattson of Lake Ontario Waterkeeper told the Senate
Committee on May 7, 2009, this delegation of authority reduces transparency in the
decision-making process and raises concerns about accountability:
To be clear, the right can always be taken away by government or politicians,
under certain circumstances. That was the case with the old Navigable Waters
Protection Act. However, the new act makes it so that it is no longer a right or
obligation on the part of the politician – the minister – to take responsibility for
those exemptions. It can be done at lower levels of government. Other people
who are nameless to us – whom we do not even know – can make decisions that
your river is not that important; your use of it is that not important.64
Good government is traditionally accountable and as transparent as possible. Lack of
accountability and secrecy in decision-making are typically associated with corruption
and abuse of powers. This is not to say that all decisions made behind closed doors
are corrupt, just that a correlation exists. Transparency and accountability are long-
accepted hallmarks of healthy democracies; they are generally considered safeguards -
checks and balances - against future abuses.
Politicizing decisions and side-stepping science
When we talk of “environmental justice”, we generally mean that every community and
every waterway is afforded equal protection under the law. It is a concept that is linked
to the rule of law and the individualʼs ancient rights, including the right to navigate.
When there is environmental justice, the rules apply equally to everyone. It does not
matter who has the most connections to political powers, who has the most money, or
who lives in an area suffering from historical pollution. Environmental justice is both a
conservative and and a liberal principle. It suggests that we must respect the rule of law
and that members of the community are free to act, so long as they do not hurt anyone.
Politics are, of course, part of government life. We do not pretend that any decision-
making process is entirely free from political considerations. That said, when it comes
26
64 Senate, Standing Committee on Energy, the Environment and Natural Resources (7 May 2009) (Mark
Mattson), online: Parliament of Canada <http://www.parl.gc.ca/40/2/parlbus/commbus/senate/Com-e/
enrg-e/05evc-e.htm?Language=E&Parl=40&Ses=2&comm_id=5>.
27. to the application of the law and the protection of an ancient right, decision-making
should be as free from political considerations as possible if it is to remain fair. Decision-
making belongs in the realm of administration. Put another way, when a Transport
Canada official - be it the Minister or a civil servant - makes a decision under the NWPA,
that official is not engaging in a political activity.
This is no longer the case. The Minister and is staff now have substantial leeway to
decide what is or is not a navigable waterway, what is or is not a minor project, and
what is or is not a “significant” interference with navigation. We have already seen
substantial evidence to suggest that some industries and organizations have more
access to government decision-makers than others. Political and economic clout are
already playing a role in who gets the ear of government and who has influence.
Without mandatory transparency, accountability, or decision-making criteria, it is
doubtful that this will change.
The reduced role for science further politicizes the decision-making process. Under the
old NWPA, every project approved by the Minister had to first go through an
environmental assessment process (“EA”). Depending on the scale and potential
impact of the project, the EA would consider issues such as potential environmental
impacts, mitigation measures, the need for the project, alternatives to the project, and
the interaction between that project and others in the same geographic area. If
environmental impacts could not be mitigated, the project would be denied. Otherwise,
conditions were imposed to protect the environment if necessary and the project would
be approved. The entire process was open to the public.
While the EA process is far from perfect, it is primarily a science-based exercise: what
will the impacts be? how can we prevent them? and so on. This process was deemed
too onerous and unnecessary for smaller projects. By eliminating the EA trigger,
Transport Canada hoped to eliminate EAs for projects with “a predetermined fate—work
that will be approved as long as you build it in a specific way in a specific type of
water.”65 It also hoped to eliminate the mandatory review of the four named works -
bridges, booms dams and causeways; the possibility of a discretionary review would
remain.
In its efforts to “streamline” the process, however, Transport Canada relied heavily on
aggregate information. It suggested, for example, that there was little reason for
environmental concern because the changes would affect in general, narrow and
shallow waterways.66 While this perspective may appear logical from the regulatorʼs
point of view, it is problematic to the citizen. The citizen is not concerned with the
impacts in general or on average. The citizen is typically concerned with one very
specific proposal, one that may fall through the cracks when data is aggregated or be
27
65 SCOTIC, 12 February 2008, supra note 19 at 1205 (David Osbaldeston).
66 See e.g. Bob Gowe of Transport Canada, Strategic Environmental Assessment for Amendments to the
Navigable Waters Protection Act: Preliminary Scan (n.d.) [Gowe, Strategic] at 4.
28. the exception to the rule. What is more, it may not be that the project on its own is
problematic; it may be that the project, in conjunction with other projects in the area,
combine to threaten navigation or the environment. A science-based approach takes
into consideration the unique aspects of each proposal and the cumulative impacts that
differ from place to place.
“Two-tier” environmental protection
Two-tier environmental protection is a problem in Canada. It creates one set of rules for
one community, and another set of rules for another community. Two-tier environmental
protection occurs when those with greater political and economic clout have greater
access to decision-makers. It also occurs when a community is already plagued by
environmental problems, such as declining water levels or historic pollution.
Our decision-making bodies seem to have short environmental memories in this
country. When we assess the potential environmental impacts of a project, we usually
use the present as a baseline. Will a project make things better or worse than they are
today? This approach creates a cycle of pollution and environmental devastation that
plagues the same communities over and over again. Want to build a plant with smelly
air emissions? Put it in Sarnia, which already has some of the worst air quality in the
country. Want to build a plant with a water intake that threatens fish? Put it on Lake
Ontario, which has the fewest fish left on all the Great Lakes.
The new NWPA institutionalizes two-tier environmental protection in two ways. First,
the new discretionary powers and opportunities for political interference mean that
stakeholders with political and economic clout have greater influence than in the past
(as described above). Second, it fosters a decision-making culture that sees “minor” or
“shallow” or “seasonal” or “remote” or “narrow” or depleted waterways as less important.
The Don River, once the heart of navigation in downtown Toronto, may never be
navigable again if Transport Canada sees its job as protecting “navigation” instead of
“navigability”. Across Lake Ontario, and presumably throughout Canada, we can see
once navigable waters such as the Oshawa River and the Montgomery River reduced to
partially navigable creeks; their names are changed, and their histories soon forgotten.
Under the short-sighted, industry-focused approach enshrined in the new NWPA, lost
rivers are unlikely to be restored and navigability, once sacrificed, never returned.
[Why] Is this an environmental issue?
Over the course of the NWPA hearings - both at the House and Senate levels - two
different perspectives emerged. Some viewed the NWPA issue as an “environmental”
issue, while others did not. The tension between the different perspectives underscored
nearly every hearing of every committee. The issue was never openly examined, but it
is a very important point. An exchange at the SCOTIC in 2008 between Mr. Ed Fast,
28
29. Conservative Party of Canada, and Krystyn Tully, Vice President of Lake Ontario
Waterkeeper, illustrates the tension:
Mr. Ed Fast:
The focus is the environment and the quality of the watersheds that you consider
in your work. Is that correct?
Ms. Krystyn Tully:
That's correct.
Mr. Ed Fast:
Your purpose is not to address the infrastructure needs of Canada. Is that
correct?
Ms. Krystyn Tully:
I think it depends on how you define infrastructure. We've seen how important
these waterways are. They are fundamentally the natural infrastructure for
Canadian communities. You cannot win back waterways across Canada if you
don't make sure that environmental laws are respected.
Mr. Ed Fast:
Are you suggesting that waterways are infrastructure?
Ms. Krystyn Tully:
They're the foundation of the community. Are you talking about man-made
infrastructure or are you talking about the wealth and assets our communities are
built on?
Mr. Ed Fast:
I just want to make sure we understand what your purposes are.
By the way, I don't want to be adversarial. I just want to understand the focus of
your work. I'm assuming it's the protection of the environment and the protection
of the quality of the water in waterways within your jurisdiction. Is that correct?
Ms. Krystyn Tully:
That's correct.
If you're trying to figure out the connection between the environmental mandate of
the organization and the Navigable Waters Protection Act, those two really do go
hand in hand going back 2,000 years, as I tried to articulate but maybe not well
enough. The reason we're protecting these waterways is not just for the sake of
the waterways themselves, it's that our communities need these to be strong, and
that's why we're here today.
Mr. Ed Fast:
29
30. That brings me to the key question, and that has to do with whether the Navigable
Waters Protection Act has as a purpose the protection of the environment. I
believe most of us here at this committee have made the assumption from reading
the act that the purpose is to protect navigation and, yes, as you said, public
access to our waterways. It is not the purpose of this act to protect the
environment, but there are triggers within the act right now for environmental
assessments.
Numerous witnesses have already appeared before us, and we've received
numerous submissions. Virtually all of them have taken issue with the antiquity of
this act, how antiquated it is, and how incapable it is of meeting the needs of
Canada today, because of an inability to get infrastructure in place, because of all
these obstacles the act places in the way of getting this work done.
Do you see this act as being an environmental act as well as a navigability act, or
is it, as you initially stated, to protect the public's right of access to these
waterways as opposed to focusing primarily on the environmental aspects of our
waterways?
Ms. Krystyn Tully:
First, I don't think I've explicitly said that I think the Navigable Waters Protection
Act is an environmental statute. I think it's exactly what it says it is. It's there to
protect navigability and navigation and the public's right to navigate.
That said, it triggers the environmental assessment process for a reason. Any
time we talk about the public's right to access water, there is an environmental
consequence. I hope I've helped in talking about some of that here today.
In particular, I would like to make the point that you can't really separate the
environmental impacts from these other things. I'm a little concerned that perhaps
you're trying to separate environmental issues from navigation issues. We're not
here for any ulterior motive whatsoever. We're here to give you a perspective from
the grassroots, to tell you how important this legislation is to individuals and how
important this decision-making process has been.
Mr. Ed Fast:
I just want to assure you that's not the case, to separate the two; what we're trying
to do is restore some balance. As Mr. Laframboise mentioned, the balance
between those various aspects--the environment, navigability, infrastructure--has
been lost. We don't want to back 2,000 years. We don't want to deal with an act
that's even 100 years old. We want a modern act that addresses today's needs.
There are complaints from communities across this country. There's unanimity
from the municipalities, the FCM, provinces, territories, and cities across this
country that the current act is a huge hindrance to our ability to build much-needed
infrastructure.
30
31. You're suggesting we simply back off from restoring that balance and that the
primary focus should still be navigability and the environment. We're not saying
that those aren't important; we're simply saying we've lost that balance. The
timeliness of getting this work in place has been lost for many, many years.
Ms. Krystyn Tully:
I can't speak to the administrative burden that I know you have been briefed on,
that some people in the transport department, for example, may be experiencing .
I would say that I would be extremely hesitant to suggest that such things as the
Magna Carta, old as they may be, are not relevant or important. That is one of the
bases for what is considered appropriate and respectful of public rights in Canada.
Navigation has always been part of that.
The purpose of the act, as I said before, is to protect individuals and citizens and
their right to navigate; it is not to protect the interests of those individuals who wish
to infringe upon that right. That's the balance the committee may be looking to
strike.67
Mr. Fast made reference to this exchange a few weeks later, when he made this
statement during a subsequent SCOTIC meeting:
She drew on what she claimed was public policy and law going back 2,000 years.
The Canada we know today didn't exist 200 years ago, let alone 2,000 years
ago ...
I'm somewhat frustrated by that kind of approach. I think Ms. Tully did admit that
this was an act that addresses navigability, as opposed to the environment. Then
she spent 80% of her time trying to convince us that it's actually an environmental
act.68
So what is it? Is the Navigable Waters Protection Act an environmental statute or is it
not? Are the environmental organizations who appeared before the various committees
interested in navigation or the environment? And are environmentalists attempting to
twist the NWPA for our own purposes? The answer is simple: Yes, the NWPA is a
statute about navigation. Yes navigation and environmental issues are connected. And
the only ulterior motive of the Waterkeeper movement is the protection of our
communities now and for the generations to come.
Generally, the word “environment” refers to “the surroundings or conditions in which a
person, animal, or plant lives or operates” or “the natural world, especially as affected
31
67 SCOTIC, 12 February 2008, supra note 19 at 1225.
68 House of Commons, Standing Committee on Transport, Infrastructure and Communities, 39th
Parliament, 2nd Session (3 June 2008) at 1135, online: Parliament of Canada <http://www2.parl.gc.ca/
HousePublications/Publication.aspx?DocId=3543792&Language=E&Mode=1&Parl=39&Ses=2>.
32. by human activity.”69 It means “all living and non-living things that occur naturally on
Earth or some region thereof.”70 Under the Canadian Environmental Assessment Act,
“environment” ...
means the components of the Earth, and includes
(a) land, water and air, including all layers of the atmosphere,
(b) all organic and inorganic matter and living organisms, and
(c) the interacting natural systems that include components referred to in
paragraphs (a) and (b)71
By both dictionary definitions and legal definitions, the word “environment” includes
Canadaʼs waterways. These waterways are in our surroundings. They are part of our
natural world and affected by human activity. They are included in the legal definition of
“environment” found in the CEAA. Logically, then, whenever issues relating to the fate
of Canadaʼs waterways are discussed, so is the “environment”.
The primary purpose of the NWPA is not to protect “the environment”, of course; the
legislation does not speak to land use issues, air issues, or living organisms. It is
entirely possible to protect navigability while at the same time destroying parts of the
environment. It is more difficult, though, to imagine works that would destroy
navigability while still protecting “the environment”. Fish passage and fish habitat
depend on the flows of water, as do water quality, biodiversity, and other traditional
environmental concerns. Therein lies the connection between navigability and
environmental concerns. It is a connection recognized by the Canadian government
more than a decade ago, when it chose to make NWPA approvals undergo
environmental assessments.
When we appear before our elected officials to speak up for the right to navigate, we
have no ulterior motive. If there were no environmental assessment trigger, we would
still be there. We are not using the navigation issue as a smokescreen for other
objectives.72 We come before them, honestly, and with genuine concern for the
navigation issue in and of itself. We are there - and will always be there - because, as
Robert F. Kennedy, Jr., president of Waterkeeper Alliance notes, we need our
waterways as much or more than they need us:
32
69 The Compact Oxford English Dictionary, s.v. “environment”, online: Oxford Dictionaries <http://
www.askoxford.com:80/concise_oed/environment?view=uk>.
70 Wikipedia, s.v. “natural environment” <http://en.wikipedia.org/wiki/the_environment>.
71 Canadian Environmental Assessment Act, supra note 17.
72 Although, as far as ulterior motives go, safeguarding clean air and water for now and forever are hardly
cause for great alarm.
33. We're not protecting the environment so much for the fishes and the birds, for
nature's sake, but for our own sake. We recognize nature enriches us. It enriches
us economically, yes, the base of our economy and we ignore that at our peril.
The economy is a wholly owned subsidiary of the environment. It also enriches us
aesthetically and culturally and historically and spiritually and human beings have
other appetites besides money. If we don't feed them we're not going to become
the kind of human beings our creator intended us to become.
We're not fighting them to save those ancient forests in the Pacific Northwest, as
Rush Limbaugh loves to say, for the sake of the spotted owl, we're preserving
those forests because we believe the trees have more value to humanity standard
than they would if we cut them down.
I'm not fighting for the Hudson River, for the sake of the striped bass, but because i
believe my life will be richer and my children and community will be richer if we live
in a world there are sturgeon and striped bass in the Hudson.73
The Waterkeeper movement is rooted in the knowledge our communities need access
to clean water to survive and the faith that the rule of law is our best chance to restore
and protect this water. It may be that, by speaking up for navigation rights, we are also
protecting the nationʼs waterways. We can live with that.
The Bigger picture
Over the course of the different hearings, a number of important questions emerged.
We can learn much from studying the NWPA process, which offers valuable insight into
the historical context of our laws, emerging threats to our environment, trends in
decision-making, and issues of justice.
Who is making the decisions?
The amendments to the NWPA were never publicly championed by one, accountable
individual. To this day, it is not clear whether the motivation for new legislation came
from department staff or the Minister and his political staff. Numerous sources suggest
that the changes came from department staff. The 2008 SCOTIC report suggests that
the hearings began when “officials from Transport Canada appeared before the …
Committee to solicit its support for undertaking consultations towards developing” the
new legislation.74 Similarly, a Transport Canada presentation dated March 8, 2007
states that “We must modernize the Act” and that the reality is modernization is “not
33
73 Robert F. Kennedy, Jr. (Address to the 12th Public Interest Environmental Conference and 6th Annual
Conference of the Environmental Association, Levin College of Law, 8 March 2006), online: University of
Florida, Accent Program <http://sg.ufl.edu/accent/transcripts/030806.txt>.
74 SCOTIC Report, supra note 27 at 1.
34. currently identified as a policy priority in the Conservative platform”. 75 A Strategic
Environmental Assessment prepared by Transport Canada also states that Transport
Canada proposed amendments following an internal review in 2006.76
Testimony over the course of the hearings, however, contradicts this position. Instead, it
is suggested that the changes came from the Minister directly. During testimony to
SCOTIC Transport Canada staff stated on several occasions that new legislation was
the Ministerʼs wish and that they appeared before the Committee on the Ministerʼs
behalf.77
Later, when speaking to the Senate committee, one Transport Canada
bureaucrat described how other considerations took over:
They [SCOTIC] issued their report in June and we ended up with a summer
recess. Time for our response on the part of the government was preempted by
the call of an election, which subsequently led to a new crisis upon the return of
the government, that being the economic crisis.
In order to deal with the economic crisis after the hearings of the Standing
Committee on Transportation Infrastructure and Communities, it was clearly
understood that the approval process for a navigable waters protection approval
was a great impediment to getting infrastructure projects underway and
refurbished in Canada. If that was to be the goal of the economic stimulus
package, then they needed to fix the legislation. Regulatory process takes a
number of years for full public consultation. It was determined that to provide the
benefit over the two year period of the economic stimulus package, orders would
be the more efficient and effective way to move quickly and follow up at a later
date with a full regulatory review process.78
The language is generic and vague. It is not known who “clearly understood” that the
NWPA was an impediment to economic stimulus. It is not stated who “determined that
… orders would be the more efficient and effective way.” Requests for more information
have been submitted to Transport Canada under the Access to Information Act, but
access has yet to be granted to any of the documents.
It is typical of the bizarre sequence of events in which our elected officials became
administrators, using parliamentary tools such as legislative amendments in order to
address staffing issues, insufficient resource allocation, and “red-tape”. Meanwhile, our
administrators became parliamentarians, using the legislative process to circumvent
34
75 Transport Canada, (8 March 2007), The Navigable Waters Protection Act Regulatory Inefficiency - A
Prime Example. Presentation to NRCan Regulatory Efficiency Workshop (Slideshow), slide 15-16.
76 Gowe, Strategic, supra note 66 at 1.
77 See e.g. SCOTIC, 12 February 2008, supra note 19; SCOTIC, 28 February 2008, supra note 32 (see
particularly references to Minister Cannon by Mr. Marc Gregoire and Mr. David Osbaldeston).
78 Senate, SCEENR, 23 April 2009, supra note 35 (David Osbaldeston).
35. traditional consultation. They argued publicly about the need for the changes,
sacrificing objectivity and independence while claiming to do so in the public interest.
This is precisely the kind of hazy decision-making process that the public fears may one
day compromise a precious navigable water.
In the future, the person or persons responsible for changing law or policy should be
identified, as should the intent of the changes and the problems that are being resolved.
This kind of clarity would have done much to eliminate or minimize confusion and
tension throughout the NWPA process.
Who are are governmentʼs “clients”?
In recent years, the Canadian government has increasingly adopted a style of
governance that treats those it regulates like “clients”. This mirrors a global trend that
started in the late 1980s.79 At times, this approach reflects a style of management that
favours the kinds of buzzwords already mentioned in this paper: eliminating “red-tape”,
“modernizing”, “streamlining” and so on. There is a very thin line, however, between a
client-centred approach to regulation and the common phenomenon known as
“regulatory capture”. Regulatory capture occurs when officials associate with the
interests of those they regulate more than, say, the interests of the public at large. It is
a somewhat rationale consequence of the close interaction between regulators and the
regulated.80
Throughout the NWPA hearings, Transport Canada officials spoke as if they
represented the interests of their regulated “clients”. Rarely, if ever, did they speak on
behalf of those who wished to use waterways for navigation purposes. The ADM spoke
of the need to “balance the needs of those wishing to construct works on our waterways
with the needs of those who use the waterways.”81 This language is noteworthy, given
that those who navigate waterways have a right to do so, while those who interfere with
navigation do so only by special authorization.
When questioned about his consultation with the public, another Transport Canada
official described the care and consideration he had offered to industry stakeholders:
Mr. Osbaldeston: On first part of the question with respect to consultation, as you
have heard, it is one of the oldest pieces of legislation in Canada. In its 127 years
of existence, there has been very little modification to meet current economic
needs or, for that matter, any of the historical needs on the way up.
35
79 John Alford, “Defining the client in the public sector: A social-exchange perspective” (2002) 62(3) PAR
337.
80 Jean-Jacques Laffont & Jean Tirole, “The politics of government decision-making: A theory of
regulatory capture” (1991) 106(4) Q.J.Econ. 1089.
81 SCOTIC, 12 February 2008, supra note 19 at 1125 (Marc Grégoire).
36. We had myriads of files of complaints from industry – many meetings over the
course of the last 20 years with representatives of national associations of the
various industries in Canada. We had municipalities writing to us constantly, in
each case not only identifying concerns with the legislation and the inability to
operate within it, but also providing to us recommendations – suggestions for
change, suggestions for improvement.
It is those concerns and recommendations that we considered in our policy work
leading toward these amendments. That is the consultative process that we had
in advance of the process that has recently undergone parliamentary review.82
From the officialʼs statement, it is clear that the recommended changes to the NWPA
reflected the interests of one group of stakeholders, but not necessarily the public at
large. In light of the care and consideration afforded to the industry interests seeking to
interfere with navigability, it is important to ask: When Transport Canada officials
complain about the law being too “restrictive”, or when elected officials are “frustrated”
by environmental considerations, whose interests are being represented? If they are
speaking on behalf of those they regulate, are they showing signs of regulatory
capture?
This is not to suggest that regulators should be hostile towards those they regulate or to
avoid consulting with them. In this case, it is quite probable that Transport Canada is
experiencing administrative problems that need to be resolved. It is important to
remember, though, that the NWPA gives government the responsibility to protect
navigable waters for the public - yet the publicʼs voice was not heard until it was
essentially too late.
What is consultation?
Consultation is probably one of the most important issues in decision-making today.
First Nations law demands it. Environmental laws encourage it. Rapidly changing
technology redefines it. Yet few government bodies are doing it well.
Consultation, when done right, leads to better decisions. It brings all the facts to the
table. It draws out a variety of perspectives. It injects creativity and foresight into the
decision-making process. It promotes respect for individuals and communities and
ensures meaningful compliance with Canadian law and policy. Most important, effective
consultation does not divide communities.
Consultation, when done poorly (or not at all), as the opposite effect. It fails to consider
relevant facts, knowledge, and expertise. It promotes limited perspectives. It breeds
suspicion and mistrust that can plague an issue or community for years to come.
36
82 Senate, SCEENR, 23 April 2009, supra note 35.
37. Good consultation is especially important in cases such as the NWPA amendments,
where the changes that are considered will limit consultation and oversight opportunities
in the future. As Mr. Kruhalk noted, the way in which the changes were introduced
contributed to the publicʼs concerns that something untoward was unfolding. Bypassing
full consultation, the new NWPA was passed in its proposed form, without modification
or compromise. That may be a political victory, but it is not much more. Industry is still
concerned that the process lacks clarity. Transport Canada officials still believe the Act
needs more changes. Other political parties are pledging to review some of the most
recent and controversial amendments in a future session of Parliament.83 The matter is
far from settled. Such is the legacy of inadequate consultation.
What is happening to environmental assessment?
Independent, rigorous environmental assessments are becoming increasingly rare in
Canada. Throughout the NWPA process, numerous government officials stated that the
environmental assessment process would remain intact, that EAs would still be
conducted for the vast majority of projects.
This assertion, though, does not tell the whole story. Because of the constitutional
division of powers in Canada, only the federal government must review navigation
issues. They do not fall within provincial jurisdiction, so most provincial governments
lack the expertise or the willingness to assume responsibility. Because of the division of
work between government departments, only Transport Canada must review navigation
issues. DFO might conduct an EA, but it will focus on fish and fish habitat. What is
more, members of the government are on record arguing that navigation is not an
environmental issue. If this perspective is shared by others in the federal government,
they are highly unlikely to ever consider navigation issues in their environmental
assessments.
Because of policies at the department level, fewer and fewer environmental
assessments are being conducted. Department of Fisheries and Oceans, for example,
has a “no net loss” policy. This policy suggests that, as long as a developer creates one
acre of new fish habitat, it can destroy another acre of fish habitat with “no net loss”. In
this case, no EA is conducted. In this way, navigation may be eliminated on a waterway
without “impacting” fish or fish habitat; DFO would never consider the projectʼs impact
on navigability. Transport Canada is the only federal department that will always
consider navigation issues in the environmental assessment process.
37
83 For example, in unaddressed email correspondence, Mr. Michael Ignatieff (Etobicoke - Lakeshore, Lib)
wrote: “If the Liberal Party forms the government after the next election, we will review the impact of these
proposed amendments, to see if changes are needed to protect navigation rights, and the environment.”
Email received by Krystyn Tully (13 March 2009).
38. As of this writing, there is an effort underway by the Canadian Council of Ministers of
the Environment to “streamline” the environmental assessment process.84 They are
considering a hodgepodge of proposals to eliminate “duplication” and “inefficiencies” in
the environmental assessments. Transport Canada is one of many federal departments
undertaking these streamlining activities; yet, aside from unsubstantiated reassurances
from government officials, it is not clear how the changes in the new NWPA will
safeguard the environmental assessment process in the future.85
Furthermore, the current federal government has also announced plans to do away with
most EAs altogether. The federal government wishes to reduce the number of
environmental assessments it conducts and to rely more heavily on assessments
conducted at the provincial level; it has said so numerous times via regulatory changes,
media accounts, agency documents, and statements in the House of Commons. For
example, on March 16, 2009, the Toronto Star reported the following:
John Baird, the federal minister in charge of infrastructure, said last month that the
streamlining would eliminate 90 per cent of the reviews Ottawa does by instead
relying on the provincial assessments.86
Minister Baird refers to, among other initiatives, two new regulations of March 2009,
which exempt certain projects from the federal environmental assessment process for a
two year period.87 His intent is confirmed by a presentation to staff of the Canadian
Environmental Assessment Agency, dated January 20-21, 2009.
These widespread changes to the EA process dramatically change the context in which
the new NWPA will operate. What is more, the changes directly contradict the
SCOTICʼs wishes, as expressed in the committeeʼs June 2008 report:
The government, in amending the NWPA, ensure that the “trigger” mechanisms
contained in other pieces of relevant legislation for environmental assessments
and fisheries habitat assessments are not done away with or impeded.88
38
84 Canadian Council of Ministers of the Environment, Potential Models for a One Project - One
Environmental Assessment Approach: Discussion paper for public consultation (Winnipeg: Environmental
Assessment Task Group, 2009).
85 Note, the common terminology used in the environmental assessment reform: streamline,
inefficiencies, modernize, etc.
86 Lauren Krugel “New rules cut ʻunnecessaryʼ assessments: Prentice” The Toronto Star (16 March 2009),
online: TheStar.com <http://www.thestar.com/article/603278>.
87 “New environmental regulations to speed up infrastructure: Prentice” CBC News (16 March 2009),
online: CBC.ca <http://www.cbc.ca/mobile/text/story_news-canada.html?/ept/html/story/2009/03/16/cgy-
prentince-environmental-regulations.html>.
88 SCOTIC Report, supra note 27 at 4.