With two new pieces of legislation, the federal government is moving to undo an important piece of the Harper government’s environmental legacy.
The Harper government’s 2012 amendments to the Fisheries Act and rewriting of the Navigable Waters Protection Act (retitled the Navigation Protection Act) were applauded by the business community and decried by environmentalists. The Trudeau government is proposing to restore most of those provisions, modernizing the legislation while still keeping off the books certain aspects that unfairly and unnecessarily constrained inconsequential activity.
Fisheries Act amendments introduced in Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence, on February 6, 2018, restore protection to all fish and fish habitat, not merely those deemed commercially, culturally or recreationally significant. Specifically, it will once again be an offence to “carry on any work, undertaking or activity that results in the harmful alteration, disruption or destruction of fish habitat.” This wording is almost identical to the pre-2012 Fisheries Act provisions that made it one of the federal government’s most effective charging tools for water pollution offences.
The amendments will also require the public disclosure of project decisions under the Act through an online registry. The offence provisions will be amended to allow for alternative measures agreements between the Attorney General and the offender as an alternative to lengthy and costly prosecution.
The new Navigation Protection Act is part of the larger revamping of the federal environmental impact assessment process. The new Act is part of Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts. Introduced on February 8, 2018, Bill C-69 effectively restores protection to any natural waterway that can float a canoe.
Minor works that do not interfere with navigation, such as docks and boat slips, will be exempted from restrictions and are expected to be made subject to generic standards. All other works will require notification. Major works (such as dams) will be subject to more stringent restrictions.
The schedule of navigable waters found in the current Navigation Protection Act will be retained, but its waters will be afforded even greater protection. The amendments will also allow for changes to the schedule by regulation rather than by legislative amendment.