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Do pipelines and fracking dams get a free pass under the new Canadian Navigable Waters Act?

The Liberal government introduced Bill C-69 yesterday that made sweeping changes to Canada’s water, environmental and energy legislation. The long-awaited bill includes amendments on the Navigation Protection Act (NPA), now named the Canadian Navigable Waters Act (CNWA), which was sandwiched in the 412 page bill.

Environment Minister Catherine McKenna and Transport Canada stated that all navigable waters were protected. But the amendments fall short of what Indigenous nations, environmental groups, residents and other organizations called for during the Standing Committee review which included restoring protections on all lakes and rivers and obtaining free, prior and informed consent of Indigenous nations.

A closer look at the bill shows pipelines and power lines are still exempt from the act and raises questions about whether the act protects all waterways from dam projects.

(Photo above: Last February, Lynn Chapman, member of the Peace Valley Environmental Association, and I delivered 10,000 petitions and the #EveryLakeEveryRiver banner to Jonathon Wilkinson, North Vancouver Member of Parliament and Parliamentary Secretary to the Minister of Environment and Climate Change. The petitions called for all lakes, rivers and waterways to be fully protected and that the NPA require free, prior and informed consent from Indigenous peoples.)

How is “navigable waters” now defined?

The CNWA now defines navigable waters as a body of water where there is public access and is used or reasonably likely to be used. On the face of it, it appears the act expands to many more waterways but parts of the definition raise questions like who decides whether a waterway is reasonably likely to be used and who will regulate this.

Water must also be protected for purposes beyond human use. As the Union of B.C. Indian Chiefs wrote in its submission to the Standing Committee’s review, “The NPA should prioritize Indigenous Peoples’ need to protect healthy water, either for current or future generations, or for the fish, wildlife, lands, and resources upon which Indigenous lives, economic, traditions and cultures depend.” Groups like West Coast Environmental Law and Wilderness Committee have also called for the legislation to protect ecological integrity.

The new act maintains the Schedule of navigable waters

The former Harper government’s NPA created a Schedule of navigable waters focused on the busiest commercial and recreation-related waterways, originally listing only 97 lakes, 62 rivers and 3 oceans. The CNWA maintains the Schedule of navigable waters. Section 29 of the new act outlines a process to add or remove waterways from the Schedule putting the onus on residents and communities to protect waterways that fall outside the scope of the act. It’s unclear at this point which waterways are on the Schedule and why there is a schedule if all navigable waters are protected.

Pipelines and power lines are still exempted

The former Harper government exempted pipelines and power lines from the NPA. The Trudeau government has approved Kinder Morgan’s Trans Mountain pipeline project without considering the impacts on the 1,355 waterways the pipeline will cross. As Council of Canadians Political Director Brent Patterson points out, Minister Catherine McKenna stated the Kinder Morgan pipeline would have been approved under the new act.

Despite the Trudeau government’s promise to restore protections, the new CNWA still exempts pipeline and power lines leaving waterways unprotected under the act.

Do B.C.’s illegal fracking dams get a free pass under the new act?

Last May, the Canadian Centre for Policy Alternatives reported that, “A subsidiary of Petronas, the Malaysian state-owned petro giant courted by the BC government, has built at least 16 unauthorized dams in northern BC to trap hundreds of millions of gallons of water used in its controversial fracking operations. The 16 dams are among “dozens” that have been built by Petronas and other companies without proper authorizations, a senior dam safety official with the provincial government told the Canadian Centre for Policy Alternatives.”

(Photo by Garth Lenz of an unauthorized Progress Energy dam where millions of gallons of freshwater was found impounded in early April. It is among “dozens” of unpermitted dams spread across northern BC, a CCPA investigation has found.)

These dams should also be regulated by the federal government but Harper’s gutting of the former Navigable Waters Protection Act absolved the federal government from having to review projects like this.

Section 7(13) of the new CNWA, under Major Works in any Navigable Water Listed in the Schedule, gives the Minister power to approve an activity after it has begun. This section combined with how navigable waters are now defined could give fracking companies a free pass to continue to build these illegal dams without requiring federal scrutiny.

In recent article on megadams, Andrew Nikiforuk warns that, “One federal plan, the Mid-Century Long-Term Low-Greenhouse Gas Development Strategy, includes scenarios that would see the equivalent of another 118 Site C dams built across Canada by 2050, many on Indigenous land in northern Canada.” Under the new act, dams could go forward without review under the CNWA if a waterway does not fall under the act’s definition of a navigable waterway.

Free, prior and informed consent missing from the act

The amendments include a section on Indigenous Peoples of Canada and points about Indigenous traditional knowledge. However, the proposed CNWA falls short of requiring free, prior and informed consent as outlined in the UN Declaration on the Rights of Indigenous Peoples.

Roughly 70 of the 240 submissions sent to the Standing Committee during the NPA review were made by Indigenous nations or organizations calling for consent of projects, policy and legislative changes.

Dispute resolution process and public registry proposed in the act

The act also includes a dispute resolution process where an individual has to bring forward a complaint about navigation on navigable waters not listed in the Schedule. The individual and the company have 45 days to resolve the dispute. This again could put the onus on individuals to protect lakes and rivers in their community.

The act also mentions a public registry but the Minister has yet to specify which information will be required. In order for the public registry to be meaningful, it must require thorough information on projects on all waterways and enable residents to participate in the decision making process.

What should “modern safeguards” include?

In addition to failing to restore pre-2012 protections the CNWA also does not propose modern safeguards. Modern safeguards should include visionary changes that recognize that water is sacred and that water is life. In order to truly establish a nation-to-nation relationships and begin to give life to Canada’s commitment to the United Nations Declaration on the Rights of Indigenous Peoples, the CNWA must explicitly recognizes the Indigenous right to free, prior and informed consent in the CNWA and all environmental reviews.

All lakes, rivers, waterways and watersheds need to be protected to implement the UN recognized human right to water and sanitation and to recognize water as a common heritage that belongs to the Earth, other species and future generations as well as our own.

Learn more about the Council of Canadians demands and our Every Lake, Every River campaign.