The Standing Committee on Transport, Infrastructure and Communities tabled long-awaited recommendations on the Navigation Protection Act
, formerly the Navigable Waters Protection Act
today. Despite being the day after World Water Day, the recommendations fail to recognize the importance of water. The first recommendation advises that protections be kept off of the 99% of lakes and rivers, encouraging the federal government to abandon its responsibilities to protect waterways and communities’ right to navigate.
As Ecojustice notes in its submission
, “The public trust doctrine is a legal concept that holds that certain natural resources are so crucial that they cannot be privately owned and are instead held by the government in trust for the benefit of the public and future generations…Public rights such as navigation are central to the public trust doctrine.”
This was an opportunity for the Trudeau government to distinguish itself from the former Harper government who outraged Indigenous communities, environmental groups and prominent Canadians such as David Suzuki, Sarah Harmer and Gord Downie
when it removed protections from 99 per cent of lakes and rivers in Canada.
Unprotected lakes and rivers
In the first of eleven recommendations, the Standing Committee recommends that protections be left off of 99 per cent of the waterways in Canada. The Standing Committee calls for the federal government to “rapidly improve the process of adding waterways to the Schedule” and “that a public awareness campaign be put in place to inform stakeholders of the process.” Recommendations 6 and 7 advise the government to clarify who can ask for a waterway to be added to the List of Scheduled Navigable Waters and on what grounds” and that Transport Canada explain “why a waterway is or is not added to the schedule.”
It is deeply disappointing that the Standing Committee did not recommend that protections be put back on all lakes and rivers despite many submissions calling for such action to protect all waterways in Canada. This puts the onus on the public to make the case to put protections back on waterways when it is the federal government’s responsibility to protect waterways for current and future generations. Recommendations 6 and 7 appear to soften the ground for Transport Canada to deny protections in some cases. This criteria remains to be seen and it is unclear whether the federal government will obtain community consent on this criteria.
Pipelines and powerlines
In 2012, the former Harper government removed federal scrutiny of large pipelines and powerlines under the NWPA. The Standing Committee recommends that Transport Canada be included in the decision-making on environmental assessments for pipelines and power lines that cross navigable waters. It is unclear what the Standing Committee considers “navigable waters” – whether it is the scant list of waterways
created by the former Harper government or any lake or river that is at risk from a pipeline or powerline.
Trudeau’s government has already given the green light to tar sands pipelines such as Kinder Morgan’s Trans Mountain and Enbridge’s Line 3 as well TransCanada’s NOVA Gas pipeline, which will transport fracked gas from northeastern B.C. to Alberta.
The Kinder Morgan pipeline crosses 1,309 waterways in B.C. and Alberta, many of which are not on the Schedule of protected waterways.
In Recommendations 9, the Standing Committee proposes that the Transport Canada “create an efficient administrative complaint mechanism…to assist the public with the resolution of possible impediments to navigation” for waterways not listed in the Schedule. This gives communities the ability to oppose project that could put waterways at risk. This is a positive recommendation. However, it remains to be seen how Transport Canada will decide on complaints and opposition to projects. It is concerning that the federal government departments have approved projects like the Kinder Morgan pipeline and Site C despite opposition from communities. This mechanism should establish a community’s right to say “no” to projects that threaten waterways. Although the Trudeau government approved the Site C mega-dam, an effective complaint mechanism should given communities the power to stop projects like this as concerns have been raised that Site C will indeed impede navigation.
Recommendation 10 urges the Transport Canada to restore “the ability of officers of Transport Canada’s Navigation Protection Program to accept and address public complaints regarding the right to navigation as part of a larger and more comprehensive complaint resolution process.” This could assist community members to voice their concerns and complaints without having to navigate costly and time-consuming court systems. Funding would need to be provided so that Navigation Protection Program is adequately funded and staffed to effectively address complaints. Navigation Protection Program offices should be given the power to reject projects to project waterways.
Consultations with Indigenous communities, provinces, territories and stakeholders
Several recommendations simply outline what the federal government should, at minimum, be doing already. Several recommendations call for the federal government to consult with First Nations, provinces, territories and stakeholders on the the criteria for the aqueous highway test (Recommendation 4), which waterways should be included in the Schedule including funding for applications (Recommendation 5) and when future changes to the act are made (Recommendation 11).
Some of the Standing Committee recommendations (Recommendations 3 and 8) also puts the federal government’s responsibilities to notify communities and hold public consultations on project proposals by recommending that project proponents such as oil, gas and mining companies notify and consult with communities. This is an abdication of the federal government’s responsibility to protect waterways and to protect communities’ rights to navigation.
Recommendation 3 calls for the government to “examine ways of preserving, protecting and respecting navigation on waterways on traditional aboriginal lands and recognize the special relationship that Indigenous communities have with waterways.” The committee noted in its report that First Nations and Indigenous groups all “voiced concerns that they had not been properly consulted…many suggesting that without full, free and informed consent from Indigenous groups [such as the Union of B.C. Indian Chiefs submission
] on changes to the NPA, that the Act may violate Indigenous historical treaty and water rights.” Still none of the recommendation include the obligation of the federal government to obtain free prior and informed as required by the UN Declaration on the Rights of Indigenous Peoples.
“Minor” versus “major” projects
The former Harper government began clawing back protections under the NWPA in 2009. That year, the federal government weakened the NWPA by creating a tiered system that reduced the number and types of projects into categories of “major” and “minor” works or projects. In its dissenting opinion, the NDP calls for the federal government to delete the minor works
and waters order. Ecojustice has noted that the 2009 clawbacks “reduced transparency and accountability by eliminating the need for public notification and consultation on all projects that the government determined would not substantially interfere with navigation. The recommendations keep the minor works order in place.
Protecting every lake and every river
These recommendations are inadequate to protect every lake and every river in Canada. As National Chairperson Maude Barlow stated today, “This was an opportunity for the Standing Committee and the Trudeau government to show leadership on water protection, and it is deeply disappointing that they have failed to do so.”
The Trudeau government will be required to formally respond within 120 days, or by July 21, 2017, and is expected to hold consultations on draft legislation this fall.
We must remember how we rely on the lakes and rivers in our community for navigation, drinking water, fishing or recreation. There is nothing more important than clean water. It is now up to us to take action to protect every lake and every river.