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Harper government braces for court battles over Navigation Protection Act

CBC reports, “The federal government is girding for yet more court battles, this time involving waterways used by boaters, cottagers and First Nations, according to a document obtained by CBC News. At issue is the Navigation Protection Act, a piece of legislation passed as part of the government’s omnibus budget bill last year.”

“Under the old rules, a waterway was considered ‘navigable’ if a vessel such as a canoe was able to float across it. Anyone who wanted to build anything on or near one of these waterways needed permission from Transport Canada, which would determine if the project threatened the ability of anyone to navigate the waterway. …The new Navigation Protection Act applies to 62 rivers, 97 lakes and the three oceans, a fraction of the country’s waterways, protecting them from development that is deemed to impede navigability. …The rest of the waterways, about 98 per cent of all rivers and lakes in Canada, now have no federal protection, which means an individual or group that depends on a waterway for recreation or livelihood would have to go to court to challenge a development it believes impedes navigation.”

Notably, “‘The [Navigation Protection Act] does not provide criteria to determine navigability’, wrote spokesperson Karine Martel [in an October 18, 2013 ministerial briefing note]. ‘Transport Canada determines navigability in accordance with relevant court decisions. Transport Canada’s decision regarding a specific waterway can be challenged in court if an individual chooses to do so.’ …A determination of navigability by [Transport Canada] for a given project remains an opinion that may ultimately be challenged in the courts as a matter of statutory interpretation. The fact of navigability can only be established through a court of law.'”

When did this happen?

The Canadian Press has reported, “The first budget omnibus bill in June [2012] 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. …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.”

Who wanted the changes?

The Canadian Press revealed, “Documents obtained through the Access to Information Act show [that the radical overhaul of the Navigable Waters Protection Act in the last omnibus bill] 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.”

Which waterways are protected?

The Ottawa Citizen has reported, “90 per cent of all the lakes that are earmarked for continuing federal waterways protection have shoreline in Conservative ridings. Just 27 per cent of the lakes are contiguous with NDP or Liberal ridings.” The list of protected waterways can be found here.

Our view

Council of Canadians chairperson Maude Barlow has written, “The Harper government killed the Navigable Waters Protection Act, stripping protections from 99 per cent of lakes and rivers in Canada. Major pipelines and interprovincial power lines now have the green light to cross over and under more than 31,000 lakes and 2.25 million rivers without federal scrutiny.”

Further reading
Changes to the Navigable Waters Protection Act impacts First Nations Treaty rights and paves the way for more pipelines
Pipeline industry called for changes to Navigable Waters Protection Act
Senate report on the Navigable Waters Protection Act
Mikisew Cree First Nation and Frog Lake First Nation to challenge C-38 and C-45 in Federal Court