This submission to the Standing Committee on Environment and Sustainable Development is offered to help its review of Bill C-69, which includes major transformations to the environmental assessment process as well as improvements to navigation protections.

1.
SUBMISSION FROM
Swim Drink Fish Canada
IN THE MATTER 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
SUBMITTED TO:
STANDING COMMITTEE ON ENVIRONMENT
AND SUSTAINABLE DEVELOPMENT
℅ Thomas Bigelow, Clerk
Via email: ENVI@parl.gc.ca
FOR MORE INFORMATION, PLEASE CONTACT:
Krystyn Tully
krystyn@swimdrinkfish.ca | (416) 861-1237
April 6, 2018

2.
BACKGROUND
Swim Drink Fish (formerly Lake Ontario Waterkeeper) has been working for a swimmable,
drinkable, fishable future since its launch in 2001. By blending science, law, education,
and storytelling with technology, we empower millions of people to know and safeguard
their waters. Swim Drink Fish operates seven initiatives: Fraser Riverkeeper, Great Lakes
Challenge, Great Lakes Guide, Lake Ontario Waterkeeper, North Saskatchewan
Riverkeeper, Swim Guide, and Watermark Project. Each program has a specific mission
that contributes to the goal of building a national movement of active, informed, and
engaged individuals working to ensure their communities can swim, drink, and fish
forever.
Swim Drink Fish has actively followed legislative changes to federal environmental law
and submitted briefs at every major committee stage since the first changes to the
Navigable Waters Protection Act​ were made in 2009. Between 2009 and 2012,
sweeping amendments were made to federal environmental laws. They reduced
transparency and public participation in decision-making. They diminished the influence
of science or the broader public interest in decision-making. And they helped to demote
Canada from its former position as a world leader in environmental protection.
This submission is offered to the Committee to help in its review of Bill C-69, which
includes major transformations to the environmental assessment process as well as
improvements to navigation protections.
Our comments are intended to help ensure that the new legislation safeguards the
public’s right and ability to safely swim, drink, and fish.
COMMENTARY: IMPACT ASSESSMENT ACT
We support Canadian Environmental Law Association’s submissions on
this matter
Swim Drink Fish has read and supports Canadian Environmental Law Association’s
submission on this topic.
Page 2 of 5

3.
COMMENTARY: NAVIGABLE WATERS ACT
The new title restores “waters” to the heart of the Act
Changing the title of the legislation to the ​Canadian Navigable Waters Act​ puts water
back at the centre of the law. Water was always the purpose of the legislation, and
changing the title makes this clear to everyone.
The new definition of “navigable” restores the spirit of the Act
The new legislation broadens the definition of the phrase “navigable water” in a way that
more accurately reflects waters in Canada, the act of navigation, seasonal changes,
historical changes, and Indigenous knowledge.
The Schedule of navigable waters remains in the Act and limits its
effectiveness
The broader definition of “navigable water” is tempered by the fact that the Schedule of
navigable waters remains in the legislation. This is essentially the list of waters that are
considered navigable for the purposes of the Act. It is not - nor can it ever be - a
complete list of the waters in Canada where people navigate. Thus, the existence of this
Schedule means that the Act never truly protects navigability of all waters or the rights
and needs of the people who use them.
The public may request additions to the Schedule of navigable waters,
but the decision-making process is flawed
Section 29(2) now allows any person to “request that the Minister add a reference to a
navigable water to the schedule.” It does not, however, oblige the Minister to
acknowledge the request, respond to the request, or make a decision according to any
particular criteria. The Minister should be required to acknowledge the request in a timely
manner (e.g., fifteen days); to make a decision in a timely manner (e.g., thirty days); to
consider the factors in 29(1); and, to publish a written decision. All of the related
documents should be available to the public through the registry.
Page 3 of 5

4.
Government must safeguard the public’s right to notice and comment
about proposals that interfere with navigation
Section 7(4) introduces mandatory public notice for Major Works, but it delegates
responsibility for consultation to the proponent. This is the least efficient way to manage
public consultation and creates too many opportunities for communities to be
uninformed or ignored. Consultation opportunities should be posted to the website.
Government should be responsible for ensuring that adequate notice was given and that
meaningful consultation has occurred. The public should be able to submit comments
directly to government decision-makers, rather than having to comment through the
proponents. Proponents may assist, but ultimately government must be the steward of
the public’s right to notice and comment.
Government should suspend or cancel an approval if it is determined that
there was not prior adequate consultation
In order to safeguard the public’s right to notice and comment, Section 4 (which lists the
conditions whereby the Minister may suspend or cancel an approval) should include the
power to suspend or revoke an approval if it is discovered that adequate consultation
was not completed. This will help to ensure that the public is notified, has an opportunity
to comment, and those comments are considered before approvals are granted. It will
also provide a safeguard in the event that the public finds out about a project late.
Strengthen considerations for traditional knowledge
Given the importance of navigable waters to Indigenous communities, the requirement
that the Minister consider traditional knowledge when determining whether to issue an
approval is a welcome addition to the Act. However, Section 7(f) limits the traditional
knowledge to that which “has been provided ​to​ the Minister,” (emphasis added). In the
context of the legislation, this appears to place an onus on holders of traditional
knowledge to monitor all approvals, ensure that the proponents contact them during the
notice and consultation process, and be prepared to communicate what may be
essentially the same information for the same waterbody every time there is a new
project proposal. For clarity, “that has been provided to the Minister” could be struck
from that section.
Page 4 of 5

5.
Safeguard consultation on Minor and Major Works lists
By choosing to list minor and major works by order, rather than regulation, the Act
bypasses the public notice and comment period that normally applies to regulations. This
is not acceptable. If the lists are not introduced and revised by regulation, then a
mandatory public consultation process should be included in the legislation itself. This is
the only way to ensure that the public learns of and has an opportunity to comment upon
these critical decisions. These lists dictate the real-world impact of the Act; since they
have not been included in the legislation itself, an alternate public consultation process
must be guaranteed.
Ensure the Registry embraces open government
The Registry should embrace Open Government principles. It should include all project
notices and comment opportunities. It should include changes to the Schedule and to
Minor and Major Works lists. It should have an RSS feed. And it should provide an open,
machine readable feed of updates in a common file-format such as JSON.
SUMMARY OF RECOMMENDATIONS
In light of the above commentary, Swim Drink Fish submits the following
recommendations:
1. Remove the Schedule of navigable waters to ensure that the legislation applies to
all navigable waters;
2. Add certainty, transparency, and accountability to the process by which the public
requests additions to the Schedule;
3. Ensure that government, not proponents, should be responsible for ensuring that
adequate public consultation has occurred;
4. Ensure that public consultation on changes to the list of Minor and Major Works is
mandatory;
5. Ensure that the Registry reflects Open Government goals and best practices.
Page 5 of 5