Bill C-45 Introduces Further Changes to Federal Environmental Regulation; Navigable Waters Protection Act to be Overhauled


On October 18, 2012, the federal government tabled a second omnibus bill, Bill C-45, which includes among a myriad of changes, reforms to the federal environmental regulatory regime. This bill follows on previous legislative efforts to streamline the Federal environmental approval process, and overhauls the Navigable Waters Protection Act, and includes minor changes to the Fisheries Act, and the Hazardous Materials Information Review Act.


Context
Designed to continue the implementation of the federal budget, tabled on March 29, 2012, Bill C-45 follows an earlier omnibus bill, Bill C-38, which commenced the current federal government’s reorganization of Canada’s environmental legislative landscape. Among other things, Bill C-38 enacted the Canadian Environmental Assessment Act, 2012 which imposed a radical shift in the federal environmental assessment process. For more details on the specific changes brought about by Bill C-38, consult Davis’ previous blog post, available here.


Navigation Protection Act
The most significant environmental reforms imposed by Bill C-45 are the changes it makes to the Navigable Waters Protection Act (NWPA).

Enacted in 1882, the NWPA regulates the development of infrastructure which could potentially impede movement through Canada’s navigable waterways. Under the NWPA, there are extensive notice and approval requirements before any work may take place in or around any water which may be navigated by any type of floating craft. Approvals (including a consultation process) were applicable both to all classes of construction, from the most important infrastructure projects right down to footbridges and docks in streams. 

Bill C-45 will change the name of the NWPA to the Navigation Protection Act (NPA) and limit the need for approvals to bodies of water which are specifically listed in schedules to the Act.

Under the proposed Schedule 2 to the NPA, 97 lakes and 62 rivers across Canada have been listed.   Additional bodies of water may be added by regulation where the Minister of Transport is of the opinion that it is in the national or regional economic interest or the public interest to do so, or where a province or municipality so requests.

The construction of any works in a lake or river not included in Schedule 2 would not require an approval under the NPA (though such works would still be subject to any other approvals required by applicable laws). 

Finally, the construction of pipelines and interprovincial power lines are exempt from the NPA, though are still subject to other applicable federal legislation.


Other Changes
Beyond these changes, Bill C-45 also disbands the Hazardous Materials Information Review Commission, transferring all its functions to the Minster of Health, and makes further changes to the Fisheries Act, the result of which are that only fish of “commercial importance” will be protected.


Response
Although Bill C-45 makes many changes to all areas of legislation, environmental groups have been among the most vocal critics of the bill.  Groups have have expressed concerns that this new omnibus bill furthers the federal government’s ongoing efforts to do away with long established environmental protections in favour of commercial interests, particularly those associated with further development of the Alberta oil sands.

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