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Changes to the Navigable Waters Protection Act impacts First Nations Treaty rights and paves the way for more pipelines

Since 2009, the Harper government has slowly clawed back protections from the Navigable Waters Protection Act (NWPA) with a final fatal blow in Bill C-45, the most recent omnibudget bill. Aside from removing the word ‘waters’ from the title of the Act and renaming the legislation the Navigation Protection Act (NPA), Bill C-45 strips protections from 99% of lakes and rivers leaving only 3 oceans, 97 lakes and 62 rivers under the purview of the NWPA. According to Natural Resources Canada, there are 31,752 lakes in Canada alone. The list of oceans, lakes and rivers kept under the NWPA, set out in Schedule2 of the budget bill, does not include some of the provinces largest lakes.

Ecojustice recently released the legal backgrounder Bill C-45 and the Navigable Waters Protection Act. Dating back to 1882, the NWP is one of Canada’s oldest pieces of legislation. Originally the NWPA prohibited any ‘work’ constructed or placed in, on, over, under, through or across any navigable water without Minister’s approval and if the project would substantially interfere with navigable waters, it automatically triggered an environmental assessment under the Canada Environmental Assessment Act (CEAA).

The NWPA was weakened in the 2009 budget when the federal government created a tiered classification system that allowed certain projects to be exempted from federal scrutiny.  According to Ecojustice, some strengths stemming from the 2009 budget included the increase of some enforcement powers, the ability of the Minister of Transportation to implement injunctions and an increase in fines.

Bill C-38, the spring omnibudget bill, scrapped the old CEAA and replaced it with one where approvals required under the NWPA will not trigger environmental assessments.

Key changes to the Navigable Waters Protection Act

Ecojustice’s legal backgrounder highlights the intimate link between navigation and environmental protection. According to the backgrounder, Bill C-45 legislates several significant changes to the NWPA:
– Companies will not have to notify the federal government that they are building a ‘work’ that interferes with navigation and will not need to get the Minister of Transport’s approval.
– The Minister will no longer have authority under the Navigation Protection Act to remove obstructions or request that they be removed. This could have serious environmental consequence. Sunken vessels and other obstructions may release harmful substances.
– The changes removes all automatic public consultation requirements squelching the public’s democratic right to provide input on projects that could potentially interfere with navigation and consequently the environment.

First Nations Treaty Rights

The changes in Bill C-45 could seriously hamper aboriginal rights. Ecojustice states, “Although the Crown has a duty to consult and, where appropriate, accommodate aboriginal peoples where the Crown is contemplating conduct that could adversely impact aboriginal rights, no such duty lies on private entities.” The federal government is not only washing their hands of protecting lakes and rivers, they are also washing their hands of their constitutional duty to consult with First Nations. The Athabasca Chipewyan First Nation decried the changes to the NWPA and the violation of First Nations treaty rights: “’I am seriously concerned. We have seen the erosion of our people’s Treaty rights throughout various forms of legislation over the past decade.  The new proposed amendments in Bill C-45 are proof to us that the government hold little stock in our rights and title and are creating more loop holes for industry to continue annihilating our lands,’ stated Chief Allan Adam of the Athabasca Chipewyan First Nation.  ‘We hope there will be a public outcry that echoes our sentiment.  After all, we all share the responsibility to protect mother earth.’”

Tearing down critical regulations for future pipeline projects

Through legislative changes, particularly the two omnibudget bills, the Harper government has greased the wheels for industry to ram through projects that could have serious implications on water quality, ecosystems, climate change and public health. The Ecojustice legal backgrounder highlights that significant rivers in British Columbia, such as Kitimat and Upper Fraser rivers which lie along Northern Gateway pipeline, are not included in the Schedule of ‘protected waters.’

The NPA definition of works astonishingly does not include pipelines and power lines. The protection of navigable waters therefore falls to the National Energy Board (NEB). While the NEB is required to look into impacts on navigable waters based on the National Energy Board Act and Canada Oil and Gas Operations Act, Ecojustice warns that the process under these acts “are not environmental assessments, and the degree to which the NEB is competent to assess the navigation impacts of pipelines is open to serious debate.”

Will oil and gas companies opt-in?

Section 318 (4) of the NPA will outline an opt-in clause. For waters not listed in the schedule, private companies can request that the NPA apply to their project. According to Ecojustice, “The NPA would allow the owner of a work to opt into the regulatory process, if the Minister deems it justified in the circumstances.” Key to this section is that this opt-in process is voluntary and there is no legal requirement for the Minister or the proponent to request this. Ecojustice adds that: “This provision inappropriately places the decision of applying the regulatory regime in the hands of the proponent.”

Harper government offloads responsibility to individuals and organizations

The federal government is evading their responsibility to protect navigable waters and dumping it onto individuals, groups and businesses to bring a court case forward. The Ecojustice backgrounder highlights that the onus of protecting navigable waters now falls on common law and onto “private citizens, public interest groups and businesses (ie. outdoor adventure companies) with a vested interest in preserving navigable waters as a public and economic resource.” Individuals, groups or businesses may not have the resources to bring forward a court case nor is it even their responsibility to regulate pipeline construction, building of dams or other private companies’ projects.

Dumping prohibition retained

The prohibition on dumping is kept intact and applies to all waters, not just those in Schedule 2 of the budget bill. The changes in Bill C-45 close a loophole and prohibit the dewatering of any navigable waters. However, this is little consolation given that protections have been stripped from 99% of the lakes and rivers in Canada and First Nations territory.

Lakes, rivers and other waters are a commons meaning that communities not only have rights to use them sustainably but they also have a responsibility to protect them. Under the Public Trust Doctrine, governments have the legal obligation to protect commons prioritizing community interests over private interests. The changes to the NWPA highlight a larger problem – that the Harper government is shirking responsibility in several critical areas including respect for First Nations Treaty rights, developing a long term energy strategy and water protection. The fights against the pipelines in B.C. have been inspirational, with First Nations playing a leading role. As governments continue to fail in their obligation to protect the environment, First Nations, progressive groups and social movements may be the only hope in safeguarding lakes, rivers and other waters.