More Changes to Federal Environmental Law Landscape in Second Omnibus Bill

October 26, 2012 | John R. Tidball

On October 18, the Federal Government introduced a second Omnibus Bill to implement measures introduced in the March budget.  The Jobs and Growth Act, 2012 (Bill C-45) would re-write the Navigable Waters Protection Act, further amend the Fisheries Act and the Canadian Environmental Protection Act (CEAA) and enact the Bridge to Strengthen Trade Act to exempt the proposed new Detroit River bridge from a variety of environmental approval requirements. Bill C-45 would also abolish the Hazardous Materials Information Review Commission and transfer its role to the Minister of Health.

If Bill C-45 is passed, the Navigable Waters Protection Act (NWPA) will be renamed the Navigation Protection Act (NPA), reflecting its repositioning as an instrument to regulate navigation, rather than water.  Consistent with the re-write of the CEAA in the first Omnibus Bill (Bill C-38), the new NPA would only apply to the oceans, lakes and rivers listed in a Schedule, totalling 162 waterways.  The NWPA currently applies to all navigable waters, including streams that might only accommodate a canoe.  The new NPA will not substantially change the approval regime, although the number of projects affected will be dramatically reduced.  A new administrative monetary penalties regime has also been included.

Bill C-38, introduced in June, made drastic changes to the Fisheries Act, only some of which are now in force.  The amendments that will refocus the fish habitat provisions on serious harm to fish that are part of a fishery are expected to come into force sometime in 2013.  Bill C-45 proposes a number of clean-up amendments and will add transitional provisions to deal with old authorizations issued by the Minister of Fisheries and Oceans.  Once the second round of the June amendments come into force, anyone holding an old authorization to do something that kills fish or causes a harmful alteration, disruption or destruction of fish habitat will have 90 days to request that the authorization be cancelled if it would no longer be required under the new section 35 of the Fisheries Act.

The Bridge to Strengthen Trade Act is apparently intended to insulate a new international bridge connecting Windsor and Detroit from legal challenges by the American owners of the Ambassador Bridge. The Fisheries Act, the NPA, the CEAA, the Species at Risk Act and other federal legislation will not apply to the construction of the new bridge or any related work, and will be replaced by requirements to file plans with the government instead.

We will report further in the months to come on the progress of Bill C-45 as it makes its way through Parliament.


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