Pipeline industry pushed changes to Navigable Waters Protection Act: documents

OTTAWA - When the Harper government included a radical overhaul of the Navigable Waters Protection Act in the last omnibus bill, outsiders scratched their heads and wondered out loud where that idea had come from.

Documents obtained through the Access to Information Act show it came, in part, from the pipeline industry.

The Canadian Energy Pipeline Association met with senior government officials in the fall of 2011, urging them not just to streamline environmental assessments, but also to bring in "new regulations under (the) Navigable Waters Protection Act," a CEPA slide presentation shows.

A copy of the Oct. 27 presentation made to then-deputy minister of trade Louis Levesque was obtained by Greenpeace Canada and shared with The Canadian Press.

At the time, the federal government was preparing for a major overhaul of environmental oversight as part of its plan to launch its "Responsible Resource Development" initiative in the 2012 budget.

With so many of the pipeline-related rules in flux, the CETA board of directors decided to hold its fall strategy meeting in Ottawa, and meet with Levesque at the same time.

They had a concise but aggressive wish list, the slides show:

— Regulatory reform so that each project goes through just one environmental review;

— Bolster the Major Projects Management Office (tasked with steering resource projects efficiently through the bureaucracy);

— Speed up permitting for small projects;

— Make government expectations known early in the permitting process;

— Support an "8-1-1" phone line to encourage construction companies to "call before you dig";

— Modify the National Energy Board Act so it can impose administrative penalties, in order to prevent pipeline damage;

— New regulations under the Navigable Waters Protection Act.

The main message was to tell federal decision-makers that if they were serious about "one project, one review," they should look at the entire array of reviews that resource development faces, CEPA president Brenda Kenny explained Wednesday in an interview.

Their plea was for Ottawa to clean up a messy system, strengthen their oversight if need be, but also fix archaic legislation like the Navigable Waters Protection Act, which subjected pipelines to another layer of scrutiny even though pipelines are almost always drilled underneath waterways and don't impact the water.

"If you're serious about sustainable development, it's very helpful to have a clear environmental assessment that is going to address any and all environmental impacts very well, and to then have that inform thoroughly the triple-bottom-line decisions that rely on that input," said Kenny.

In the end, they got almost everything they wanted except the 8-1-1 hotline. Federal regulators ruled that idea out, mainly because the number is already being used by telephone-health services in many provinces.

The first budget omnibus bill in June contained a replacement for the Environmental Assessment Act and also a provision to remove pipelines and power lines from provisions of the Navigable Waters Protection Act. Predictably, reaction from environmentalists was negative, while business and the natural resource sector reacted positively to the changes.

But then the government surprised many close observers by going even further in a second omnibus bill, C-45. The Navigable Waters Protection Act was changed to the Navigation Protection Act, significantly reducing its scope over Canada's waters.

Transport Minister Denis Lebel has argued that the changes were in response to demands from municipalities, who found that the act was tying them up in red tape as they tried to build bridges and culverts, said spokesman Mike Winterburn.

But over the decades, the act — originally written in 1882 — had morphed into a central pillar of environmental legislation. Critics say the major changes in C-45 were never discussed in that context.

"I never really knew where this call for change came from," said NDP environment critic Megan Leslie.

At the time, the House of Commons environment committee was reviewing the Environmental Assessment Act, and the need for changes did not come up despite vibrant discussions about how to streamline approvals for resource development, she said.

"It was never in any documents, it was never an addendum to testimony or anything like that. And in some private meetings I've had with some industry reps, they too have expressed to me that they don't know why the Navigable Waters Act changes were made."

While Leslie said it's perfectly acceptable for industry groups to present the government with lists of policy recommendations, "what's not normal is that those changes are accepted holus-bolus, without any consultation."

The changes prompted another outcry late last year from environmentalists, who were then joined by First Nations across the country who took to the streets in protest.

Now, as U.S. President Barack Obama has signalled his intention to focus on climate change, the Harper cabinet is scrambling to tout its green credentials and prove the worthiness of Canadian pipelines — especially since Obama's decision on the Keystone XL pipeline is pending.

Greenpeace Canada's climate and energy co-ordinator, Keith Stewart, wonders if the government and the pipeline industry are having any regrets, given the push-back.

"I think it's a case of 'be careful what you ask for,'" he said.

Both the pipeline industry and the federal government want faster approvals as well as "social licence" in the form of positive public support. But achieving the first goal is limiting their ability to achieve the second goal, he added.

"The pipeline companies ultimately got the kind of changes they wanted to Environmental Assessment legislation and the Navigable Waters Protection Act in the 2012 budget omnibus bills. This may prove to be a pyrrhic victory, however."

CEPA's Kenny does not agree. Rather, she said she wishes critics would recognize that the federal government has now set a higher environmental standard for pipelines by consolidating their processes.

"It's unfortunate that this has become so emotional. There's a misunderstanding of the implications, to be blunt."