Contrary to Rumours, There is No License to Pollute Canadian Waterways

Commentary, Elmira Aliakbari, Ross McKitrick

In 2012, the Harper government replaced the old Navigable Waters Protection Act (NWPA) with a new Navigation Protection Act (NPA), aimed at updating and simplifying regulations governing transportation on inland waterways, sparking considerable controversy. Many groups slammed the changes and accused the government of stripping away environmental protection saying the changes allow for virtually unlimited water pollution, which prompted the NDP to start a petition calling on the public to protect Canadian waterways. The debate has revealed that there are many concerns and misconceptions about how water quality is regulated in Canada.

The NWPA was enacted in 1882 to protect accessibility of waterways for commerce, recreation and transportation. It was not intended for environmental protection, as other rules were created to address environmental issues, and was primarily a provincial responsibility under the British North America Act. The 1992 Canadian Environmental Assessment Act (CEAA) changed the situation, however, by requiring environmental assessments for NWPA-protected waterways. This had the effect of requiring every single project, including cottage docks, minor bridge repairs and launch ramps, to complete an environmental assessment and get federal approval. One observer noted a case in which 80 separate assessments were conducted for docks on a single lake near Edmonton.

Revisions to the Act were therefore needed to reduce red tape, improve the efficiency of the approvals process, and get back to the original intent of the NWPA. The new rules identified “key” navigation waterways which were identified by proximity to populated areas, marinas and ports, and exempted the remainder. They also reduced the number of required assessments, and exempted minor projects, such as docks and boat launches.

For the key waterways covered under the new Act, polluting activities (such as dumping debris or any other contaminant) are still prohibited. The new legislation also introduced rules to prevent dewatering and to protect water volumes for navigation purposes. The NPA also enhanced enforcement procedures and implemented monetary penalties for violation.

But the changes triggered concerns about protection of the de-listed waterways. What has been overlooked, however, is that Canadian water quality protection was never primarily based on the NWPA, but rather, it is a cooperative undertaking between federal and provincial governments based on multiple different pieces of legislation.

In a nutshell, the federal government works with the provinces to coordinate the creation of regulatory standards for hundreds of water quality parameters that provinces then implement through monitoring and enforcement programs. Much of this activity is reported on through the Canadian Council of Ministers of the Environment.

At the federal level, the Canadian Environmental Protect Act sets out standards for preventing pollution and controlling risks associated with hazardous and toxic substances. The Canada Water Act sets out a collaborative framework among federal, provincial and territorial governments to manage Canadian waterways and set water quality guidelines. Under the terms of the Act, a provincially-administered network of monitoring sites continually tracks water quality across the country. Ontario’s records can be seen at www.yourenvironment.ca. Other legislation that gives the federal government authority to protect water quality includes the Department of Environment Act, the International River Improvement Act, the Fisheries Act and the Species at Risk Act.

Each province also takes steps to govern its own water quality. In Ontario, for example, the Clean Water Act aims to protect both the quality and quantity of water in rivers and lakes. Communities are required to identify existing and future potential risks, and to develop plans to address them. Ontario water is also protected under the Ontario Water Resources Act and the Environmental Protection Act.

In addition to all these measures, and indeed prior to any of them, the British common law tradition has provided a form of pollution prevention by allowing downstream landowners to seek injunctions against upstream polluters.

There were valid reasons to update and streamline the NWPA, but it is a mistake to claim that doing so stripped away the entire structure of Canadian water pollution regulation. The protection of water quality in Canada has always been a complex matter involving multiple levels of government and a host of overlapping pieces of legislation. Simply put there is no blanket license to pollute rivers and streams in Canada.

 

Ross McKitrick is Research Chair and Elmira Aliakbari is Research Director of the Frontier Centre for Public Policy’s Energy, Ecology and Prosperity program.

This op ed was originally published by The Financial Post on Tuesday, May 31, 2016: http://business.financialpost.com/fp-comment/no-the-harper-government-didnt-gut-laws-protecting-our-waterways