Changes to Navigable Waters Protection Act dangerously undermine environmental protection, say critics

By Erin Flegg Vancouver Observer January 1 2013

As the Idle No More movement gathers steam, some First Nations say changes to the Navigable Waters Protection Act are the latest attempt by the federal government to undermine Aboriginal land rights.

Cam Hill, a member of the Gitga’at First Nation, has spent the last 20 years watching the steady decline of his region’s waterways in northern BC. Growing up, he never doubted that he would spend his life as a commercial fisherman, but after university, he found he could no longer support himself and his family that way.

“I’m 44 years old now, and 40 years ago my father and my grandfather and everybody in this community was self-sustained by the environment around them,” he recalled.

Now a schoolteacher in the Gitga’at territory of Hartley Bay, Hill still feeds his family of five primarily by harvesting the seafood and other resources readily available in the area, and he worries about the impact government deregulation of development on land and in the water is going to have on his family’s day-to-day life.

“Being the winter season, one of the freshest foods that we can get and can count on is flounder or sole. My family, my wife and my youngest went out and got our supper for this evening. That gives you an indication of just how much our family uses of the ocean.”

Hill says the changes to the Navigable Waters Protection Act passed as part of Bill C-45 are just the latest in a long line of government mistakes, adding that the Department of Fisheries and Oceans has done more harm than good, letting in invasive species and leaving the waters vulnerable to industrial damage.

“You’re looking at LNG (liquefied natural gas) proponents, you’re looking at the whole Enbridge situation,” he said. “You’re looking at all kinds of industry that has wanted to come in and utilize the territory.”

Major changes to the act—now called the Navigation Protection Act—mean developers looking to build on and around lakes and rivers no longer have to notify the federal government of their plans.

As a result, future projects won’t trigger a federal environmental assessment, which First Nations say undermines their right to free, prior and informed consent for construction in traditional territories.

The change in the act’s title reflects the government’s move to separate the navigation rights that belong to all Canadians from the protection the waterways themselves. But Annita McPhee, head of the Tahltan First Nation council, sees it as a direct attack on the environment. The Tahltan scored an important victory in December, convincing Shell Canada to withdraw from the Sacred Headwaters of the Skeena, Nass and Stikine rivers.

Now, only one of those salmon rivers, the Skeena, is protected.

“It’s a direct attempt to undermine the protection of those lakes and waters and to allow access for developers,” she said. “This is affecting First Nations, but it’s affecting everybody. How can we all not be affected by this?”

By releasing private companies from the duty to notify the federal government when undertaking infrastructure projects, the new act in turn takes away the federal government’s duty to consult with First Nations before approving new projects such as the Enbridge Northern Gateway Pipeline.

McPhee believes the Harper government had Enbridge and other energy companies in mind when they made the changes.

“That’s exactly why I think these processes are being created, to try to bypass First Nations,” she said.

“When it comes to development, we’re the only ones standing in the way. They have to consult us.”

The change is the next step—the second in less than a year—in the Harper government’s downgrading of Canadian waterways. In 2009, the Conservatives lowered protections by creating a tiered classification system that removed many lakes and rivers from the protected list. In July of 2012, the Conservatives passed the Jobs, Growth and Long-Term Prosperity Act, more commonly known as Bill C-38, that gave the government power to override decisions made by the National Energy Board’s Joint Review Panel, the panel currently hearing testimony to assess the impact of the Enbridge pipeline.

Another new provision allows the Minister for Transport to delegate his approval duties to another organization or individual. This will most likely mean a transfer of power to provinces and municipalities, a change McPhee sees as a means of putting more distance between the government and its constitutional obligations.

“If they’re going to wipe their hands clean of their duty and hand their jurisdiction over to the provinces, that leaves us in a very vulnerable position,” she said.

In some cases, changes to the act may actually prove counter-intuitive. Linda Heron, director of conservation group Ontario Rivers Alliance, lives on the Vermillion River near Sudbury, Ontario. The Vermillion is already the site of four hydroelectric dams and a fifth proposal is in the works. These dams are all peaking facilities, which means they hold back water until peak demand hours and then let it go to generate power.

“That means they can let some areas of the river go dry and there’s nothing we can do to protect the rivers or our navigation,” she said.

“It’s a real possibility on the river I live on, and this is not unique.”

There are also several mining companies in Sudbury who that use large quantities of water in their processing. If the rivers dry up due to overuse, she said, it would certainly impede navigation.

Heron said the method by which the list of protected waterways was chosen is also suspect, citing the Petawawa River as an example. Due to high-level rapids, the Petawawa isn’t navigable by anyone but a skilled kayaker. She sees one key reason why that river is protected and rivers like the Mississippi, a tributary of the much larger Ottawa River, are not.

“A lot of the rivers that were protected happen to have conservative MPs in their riding. We had an MP, Cheryl Gallant of Renfrew-Nipissing-Pembroke riding, who spoke in the legislature on October 30 and admitted in her speech that she spoke up for the Petawawa and the Ottawa rivers to protect them from the Green Energy Act in Ontario.”

Another consequence of reducing government oversight is the loss of opportunities for public comment. Without the mandatory consultation process that used to go along with getting ministry approval, it’s left to the discretion of private organizations to decide if they want to invite public input. The lack of federal regulation also puts the weight of enforcement on common law and leaves it up to the public to apply it.

“The government has basically left it up to citizens after the fact to use common law for protection. That means the expense is on the ordinary citizen to take a company to court after the damage has been done, and it just does not seem reasonable.”

There are a small number of changes that strengthen enforcement of regulations such as dumping prohibitions and fine collection. But Heron says there simply aren’t enough waterways left for such positive changes to have any significant effect. 

She added that these changes make it crucial for the public to support First Nations’ efforts to force the government to recognize and honour treaty rights.

“I see it as standing up for our environment and our water,” she said. “We do support First Nations in the Idle No More campaign because basically as Canadians, we are losing our democratic rights. We had no say in these changes the government made to the CEAA [Canadian Environmental Assessment Act] and the Navigable Waters Protection Act. We had no say in that and neither did First Nations.”