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Navigable Waters Protection in Omnibus Bill C45: Some Unintended Consequences of Protecting Goldie Hawn’s Lake

The federal government has an age old legal responsibility to protect navigation on all of Canada’s waters. The common law right to navigation pre-dates Confederation. Despite the clear Harper government preference to get out of the business altogether, the law will not permit it. So what the government has done in the Omnibus Bill is attempt to reduce the number of waterways where the feds have to pass judgment - from 17,000 to 161. There is where the NDP slogan about protecting Goldie Hawn’s Lake comes in. It turns out that her nice little lake in the Muskosas is one of the 161. The irony is that the common law responsibilities never leave the feds (or the Department of Transport) despite the Bill’s intent to restrict that responsibility to 161 waterways only. The Bill is saying- well ok- let the courts decide on the non-161 lakes in the event of a dispute over a structure that allegedly restricts navigation. The Bill also provides for project proponents to apply to the Department of Transport for pre-approval if the project is not on one of the 161 waterways. This is called the “opt-in” provision and it is open ended and available to all. The Bill also provides for other governments to apply to the federal government for Ministerial delegative authority to approve projects under federal jurisdiction. So the devolutionists in the Harper administration have succeeded by putting in a mechanism where “devolution through delegation” can take place, despite the retention of the federal common law protections.

The officials at Transport Canada justify the reduction in waterway coverage by saying that they were spending far too much approving cottage docks. This may be the case but one has the ask the question: why not restrict federal approvals to large types of works rather than restrict federal oversight to specific waterways?  The advantage of limiting oversight to specific works would be that the workload would be predicable based on past performance of types of works. In other words, the process would be manageable by less than 40 bureaucrats now responsible for all Navigable Waters protection.

The problem with the 161, the opt-in, and the delegation to municipalities is that nobody knows what this means from an administrative point of view. How many applications will the federal government receive? Who knows? Who resolves disputes between applications from delegated municipalities and constructors who may have possibly sought an “opt-in” approval from the feds?  (The presumption in the rationale behind the Bill is that other governments will be more responsive and more acceptable of developments, rather than less. In fact, the opposite may be true!).  All this uncertainty is coming at a time when the responsible division at Transport already has a dozen organization-altering projects on the books. Additionally, this comes at a time when employee morale is at an all-time low and there are countless numbers of workers on “affected” status and uncertain whether they will have a job in the future.

In the federal government environment today, the only way to approach legislative change is to ensure that this change has predictable administrative consequences. This is certainly not the case with the Goldie Hawn Lake Protection provisions in Bill C45- the government’s Omnibus Bill now before the House and Senate. The responsible House and Senate committees are holding two days of public hearings- only supporters of the Bill have been invited. A few of these “supporters”  only heard about the Bill a few weeks ago. 

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