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Does the new ‘Canadian Navigable Waters Act’ protect lakes and rivers from pipelines?

Environment minister Catherine McKenna speaks to reporters this morning about the provisions in the new Act.

This morning, the federal Minister of Environment and Climate Change Catherine McKenna tabled the much anticipated 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.

It’s a long title and at 351 pages of text and 26 pages of ‘explanatory notes’, a lengthy piece of legislation. But it’s a straightforward question to ask if the bill would restore lost protections, ensure modern safeguards and protect lakes and rivers from major resource projects such as tar sands pipelines.

In a media conference this morning, McKenna, in response to a question from a reporter, stated that the Act would protect all lakes and rivers.

But the government’s media release is more nuanced. It says, “Protections under the Canadian Navigable Waters Act (currently the Navigation Protection Act) will be expanded to better protect the right to travel on all navigable waters in Canada, covering countless rivers, lakes and other waterways. This includes extra protections for those waterways most important to Canadians and Indigenous Peoples.”

And even glancing through the text you’ll find this:

“Construction or operation – navigable water

218 A person must not construct or operate a pipeline that passes in, on, over, under, through or across a navigable water unless a certificate has been issued, or an order has been made under section 214, in respect of the pipeline.”

That doesn’t sound like a modern safeguard that is going to protect waterways across this country from Big Oil.

On page 284 you will find the heading “Works in Navigable Waters not Listed in Schedule”, on page 298 a section that says “Any person may request that the Minister add a reference to a navigable water to the schedule by submitting an application in the form and manner containing the information, specified by the Minister”, and at the top of page 299, “The Minister may, by order, amend the schedule by amending a reference to a navigable water and the Governor in Council may, by regulation, amend the schedule by deleting a reference to a navigable water.”

These references to a “schedule” would strongly suggest that not all lakes and rivers are automatically listed as protected as had been hoped – and that the “Governor in Council” could delete a waterway even if it were listed.

Green Party leader Elizabeth May says, “The navigable waters section of the bill holds out hope that protections will be restored for some of the waterways that were left vulnerable under Harper. But it provides for a strange and convoluted process whereby it must be proved that a waterway is used by humans for navigation before it can be added to the protected list.”

Other quick observations:

1- the current industry-friendly Calgary-based National Energy Board would be replaced by a proposed Calgary-based (and likely industry-friendly) Canadian Energy Regulator

2- it includes the ‘one project, one review’ principle as demanded by industry

3- assessments of major projects must be completed within two years, a ‘predictable timeline’ also demanded by industry

4- the bill notes the ‘traditional knowledge of the Indigenous Peoples of Canada’ but does not include the words ‘free, prior and informed consent’, a key principle of the United Nations Declaration on the Rights of Indigenous Peoples

5- McKenna said that no current projects (including the Kinder Morgan pipeline which crosses more than 1,300 water courses) would be sent back to ‘the starting line’

6- the government is seeking to implement the law by mid-2019.

The Council of Canadians will continue to study the Act, comment on its implications, and mobilize for needed improvements to fully protect waterways in this country.