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Campbell Wants to Repeal Waterways Access Law

1882 Act protects citizens' right of access to rivers, lakes, ocean inlets.

By Andrew MacLeod 23 Feb 2009 | TheTyee.ca

Andrew MacLeod is The Tyee's Legislative Bureau Chief in Victoria. You can reach him here.

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Recreationists worry about impact.

The premier of British Columbia, Gordon Campbell, wants the federal government to repeal a major piece of legislation that helps protect the environment.

The attack, which comes at a time when the federal government is already trying to weaken the act in question, at first appeared inconsequential. It rated just one sentence deep in Feb. 16's 40-page speech from the throne.

"The federal Navigable Waters Act [sic] should be repealed and replaced by legislation that meets the legitimate needs of the 21st century," said the speech, which sets out the government's priorities. "A unified major project review process will speed up job creation in mining, energy, resort development and other areas."

As it happens, the B.C. government had the name of the federal act wrong, leaving out the word "protection" from the Navigable Waters Protection Act.

The act's primary purpose is protecting people's right of access to rivers, lakes and any body of water it is possible to travel by boat or ship, an environmental lawyer explained. By helping protect waterways, the act has the side benefit of keeping them in their natural state.

That law's too old: Campbell

Reporters, curious about why the provincial government dislikes the act, got little help from Campbell during a scrum in his office.

"Let's put this in context for you," said Campbell responding to a question from CKNW's Sean Leslie. "That act was passed in 1882. I would suggest that the world has changed dramatically in the 21st century from what it was like in 1882."

The act slows development, he said. "Right now across the West, literally every economic development minister will tell you that the federal Navigable Waters Act [sic] is a huge impediment to investments and to jobs."

He added, "If there are legitimate needs for the Navigable Waters Act [sic], put them in place in a 21st-century bill, but don't hold up 21st-century investment and jobs because of a 19th-century piece of legislation."

Just what projects are being slowed by the act?

"You name it. Name a project that's a significant project. If it involves any kind of watersheds, it could do that, sometimes if it involves an agricultural ditch it, may be called on."

The act is supposed to ensure people can travel the country's waterways, he said. "We're capable of doing that in British Columbia without checking with the federal government."

'Profound misunderstanding'

Campbell's right that the Navigable Waters Protection Act is old, said Will Amos, a staff lawyer for Ecojustice in Ottawa. That's not a reason to get rid of it, he said, asking rhetorically, "Is the Constitution outdated?"

In fact, the principle the act is based on goes back much further, he said, to the Magna Carta, signed in 1215. Since then, common law in many countries, including Canada, has protected the public's right to use waterways.

The public has that right, said Amos, and the federal government is mandated to protect it.

"The suggestion of a repealing of the Navigable Waters Protection Act is ridiculous and inappropriate," said Amos. "It's a legally and historically incorrect view... It's a profound misunderstanding of navigation history and law."

Amos said he can, however, understand why Campbell wants it killed. "The provinces don't like any federal environmental regulation and enforcement."

Or as Linda Duncan, the MP for Edmonton-Strathcona and the federal NDP's environment critic, put it, "Provincial premiers always want to get rid of the federal government."

Told of Campbell's comments about the age of the act, she said, "Yes, they are very old laws. People have guarded them."

Environmental assessments

The Navigable Waters Protection Act will trigger an environmental assessment whenever a structure goes over a river or a lake, Duncan said. "It sounds like a minor thing, but it's an important part of federal responsibility," she said. "This is not an insignificant law."

In B.C., for starters, thousands of salmon streams could be affected, she said.

Campbell's are strange remarks from a premier working on his green reputation, she said. "He's showing his true colours. Unbelievable he would single it out."

That leaves observers wondering why exactly Campbell wants the act gone.

"It's a major trigger for the Environmental Assessment Act," said Andrew Gage, staff counsel for the West Coast Environmental Law group. It affects proposals such as a controversial one now being debated to add a marina to Victoria's inner harbour.

Provincial NDP environment critic Shane Simpson said Campbell has all kinds of reasons to oppose the federal regulations. The act affects run of the river hydro projects, gravel extraction and aquaculture, he said. "This could certainly relate to issues around oil tankers."

"I think it really does have to do with beginning to reduce environmental oversight," he said.

Last week's B.C. budget cut the province's environment ministry by 11 per cent, said Simpson. "Instead of putting resources in to deal with these in a more thoughtful way, the other option is just get the rules out of the way totally."

Federal threat

While repealing the act is not something on the federal agenda, the Conservative government is in the process of significantly weakening it.

On behalf of various clients, including environmental groups and Mountain Equipment Co-op, Amos will appear before the House of Commons Standing Committee on Finance today (Feb. 23) to oppose the changes, which the Conservative government announced with the budget in late January and detailed in the Feb. 6 Budget Implementation Act.

Harper's proposed amendments would make it easier to skip the approval process and environmental assessments, said Amos, who wrote an Ecojustice memo on the issue. "The [Transport] minister will be able to exempt whole classes of waterways and works from the approval process and environmental assessments."

The minister could, for example, decide that aquaculture projects are no longer subject to the approval process, he said. He or she could do the same for micro-hydro projects, a controversial topic in B.C..

For such projects there would no longer even be any need to notify the public, Amos said, threatening both long-standing access rights and possibilities for protecting waterways. With the stroke of the pen, he said, "They could do a lot of damage and nobody would know."

The Harper government argues the changes are needed to accelerate infrastructure spending, said Amos. "Wrecking the environment to stimulate the economy is not the direction we need to go."

Sneaky bill

A better way to accelerate approvals would be to invest money in the government departments that do the work, he said. "They could do that and they ought to do that." Instead ,Harper is choosing a deregulation approach. "We saw where deregulation got the U.S. economy. We don't need to go down the same route with the environment."

That Harper's government has brought the changes forward as part of an unrelated bill is outrageous, he said. "The real problem is we weren't consulted," he said. "There's a lot of people really concerned about this... We're finally going to get the opportunity to be heard."

Stories are starting to emerge from the paddling community, and there is concern among environmentalists, though the issue has received little media attention.

Amos said he'll tell the Feb. 23 committee meeting the amendments are contrary to the interests of many Canadians, including those in the ecotourism business, sport fishers and outdoors stores. "You're going to hear more about this soon."

The NDP's Duncan said bringing the changes forward as part of a budget bill is sneaky. "It should be done in an open forum so people can understand what they're up to," she said. "Shouldn't they come forward in a way the public can discuss and debate?"

The federal Liberals were in a position to ask for the amendments to be removed before they pledged support for Harper's budget, she said, but failed to do that.

Green edges

Campbell's attack on the federal laws is just another sign his commitment to the environment is weak, said the provincial NDP's Simpson. "It was always very narrow," he said. There was the introduction of the carbon tax to show Campbell's interest in the environment, but little more. "If you looked past that there's not much in the way of green initiatives that you can find on the agenda."

While Campbell has received credit for the carbon tax, a lot of environmentalists have ignored his brown side and what's actually happening on the land, said Vicky Husband. A long time conservationist, Husband describes herself as a "free radical" since her parting a few years ago from the Sierra Club.

In a recent e-mail, she listed a number of things the Campbell government has done: subsidizing the oil and gas industry, promoting coal bed methane exploration, encouraging "ruin of river" private hydro projects, funding advocates of offshore oil and gas development, allowing the removal of land from management under tree farm licenses, removing control over forest industry practices, promoting fish farms, ignoring the evidence on sea lice and salmon, proposing pipelines across Northern B.C. and building more highways in the Lower Mainland.

"A lot of the leading environmental groups are caught up in climate change and if there's a carbon tax, things are good. I've always said, 'show me,'" she said. "It's a total sham... He's going green around the edges and that's it. There's no green in the centre."

Pressing Harper to get rid of an act that helps protect waterways is just one more example, she said.

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