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Six ways to protect every lake and every river

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UPDATE: The Standing Committee on Transport, Infrastructure and Communities has extended the deadline for written comments to November 9, 2016. 

You probably remember that the former Harper government gutted protections for 99 per cent of lakes and rivers under the Navigable Waters Protection Act in 2012. 

The changes helped spark the Idle No More Movement. They prompted artists like Sarah Harmer and the Tragically Hip's Gord Downey to speak out in defense of waterways in Canada. And they are what got Mountain Equipment Co-op's CEO David Labistour to present a list of 40 recreationally important waterways -- half of which are heritage rivers -- to the Senate committee studying the issue and remind the committee that the outdoor recreation industry creates six million jobs. 

This week, the Standing Committee on Transport, Infrastructure and Communities began inviting written comments on its review of the Navigation Protection Act, formerly the Navigable Waters Protection Act. It posted information on its website on Tuesday. The deadline to submit written comments is Wednesday, November 9, 2016.  

The Trudeau government committed to "review, modernize and restore" environmental and regulatory processes. In June 2016, six federal ministers whose mandates impact the environment announced they would review environmental legislation gutted by the former Harper government. The reviews are to include consultations through the fall in four areas: the National Energy Board, the Canadian Environmental Assessment Act (CEAA), the Fisheries Act and the Navigation Protection Act

Below you will find some background information and talking points you can include in your written comments. However, the Standing Committee’s timeline is a very short timeline and has not been widely publicized. We encourage you to contact the committee to ask them to extend the deadline to at least 60 days. 

This process is independent of Transport Canada's process. While Transport Canada has not posted its process yet, you will be able to find that information here

What are the changes that the former Harper government made?

Dating back to 1882, the Navigable Waters Protection Act (NWPA) is one of Canada's oldest pieces of legislation. Originally, the NWPA prohibited any "work" -- constructed or placed in, on, over, under, through or across any navigable water without the Minister of Transport's approval. If the project would substantially interfere with navigable waters, it automatically triggered an environmental assessment under the Canadian Environmental Assessment Act (CEAA). (See How to protect water through the Canadian Environmental Assessment Act  (four part series) on what to call for in the current CEAA review process.)

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.

In 2012, the Harper government's omni-budget bill C-45 dealt the act its final fatal blow. Aside from removing the word "waters" from the title of the act and renaming the legislation the Navigation Protection Act (NPA), Bill C-45 stripped protections from 99 per cent of lakes and rivers leaving only three oceans, 97 lakes and 62 rivers under the purview of the NPA.

Canadian Press reported that 89 per cent of the scant list of protected waterways were in conservative ridings. In Canada and Indigenous territories, it is estimated that there are nearly 32,000 major lakes and more than 2.25 million rivers. The list of oceans, lakes and rivers that are protected under the NPA, set out in the schedule of the act, does not include some of the largest lakes in the country. The NPA also exempts pipelines and powerlines from scrutiny so the impacts of these projects are no longer assessed for any navigable waterway.

Why does the Navigable Waters Protection Act matter?

Industrial projects are moving forward with little or no scrutiny under the Navigation Protection Act. These projects like the Energy East pipeline (Alberta to New Brunswick), the Kinder Morgan Trans Mountain pipeline (Alberta to B.C.), the Keeyask Dam and Bipole Transmission Line (Manitoba), the Ajax Mine (B.C.) can threaten local waterway, recreation, transportation, fisheries, local tourism and drinking water.

(The Council of Canadians will soon be releasing a report on the Navigable Waters Protection Act that examines case studies like the Energy East Pipeline, the Ajax Mine, Keeyask Dam and the Bipole Transmission Line so stay tuned!)

We know that Big Oil and the pipeline industry drove the changes that Harper made and we know they are lobbying the Trudeau government to keep water protections scaled back. An Access to Information request by Greenpeace revealed that the 2012 budget bill changes to the NWPA were guided by the advice of the Energy Framework Initiative, which includes Canadian Association of Petroleum Producers, the Canadian Energy Pipeline Association.

According to The Globe and Mail, a number of industry groups are registered to lobby Trudeau's government on the environmental legislation reviews such as Shell Canada, the Canadian Electricity Association and the Canadian Energy Pipeline.

Ecojustice points out, "The interrelationship between navigation and the environment is such that the protection of the former consistently promotes the health of the latter." Navigable waters are intimately linked to clean drinking water, recreation and healthy fisheries, and why the Navigable Waters Protection Act must be restored and strengthened. 

How to protect every lake and every river

The Navigable Waters Protection Act must be restored and enhanced so that all lakes, rivers and waterways are fully protected. Here are some points to include in your written submission and what to call for to protect every lake and every river. 

1. Protections must be put back on all lakes, rivers and waterways, so that every lake and every river is protected. 

The former Harper government removed protections for 99 per cent of lakes and rivers by creating a schedule which lists the 97 lakes, 62 rivers and three oceans. It also changed the wording in the Navigation Protection Act so that most protections only apply to the waterways listed in the schedule. The schedule must be eliminated and the wording changed back so that protections in the act apply to all lakes, rivers and other navigable waterways. 

2. Reinstate and strengthen federal scrutiny of large pipelines and powerlines under the NWPA and assessment of waterways under Canadian Environmental Assessment Act

The NPA also exempts pipelines and powerlines from scrutiny so the impacts of these projects are no longer assessed for any navigable waterway. Changes were made to the National Energy Board Act and the Canada Oil and Gas Operations Act so the definition of "project" does not include pipelines or transmission lines, and so environmental assessments are no longer triggered by these kinds of projects.

Because the NPA exempts pipelines, pipelines like Energy East or Kinder Morgan's Trans Mountain pipeline are going forward without review of the nearly 2,963 and 1,309 respective waterways they cross.  

The scope of environmental assessments was also drastically narrowed. Ecojustice notes that under the CEAA 2012, projects that go through comprehensive environmental studies -- the second-most rigorous of the three processes -- no longer need to include a range of information in their project descriptions including:

  • A description of the impact on navigable waters or any unique or special resources not already identified.
  • A description of the components of the environment that are likely to be affected by the project and a summary of potential environmental effects and information relating to the terrain, water bodies, air, and vegetation that would give federal authorities a more accurate picture of the environment that may be impacted by the activity.
  • A description of the name, width and depth of any waterway affected by the project and a description of how the waterway is likely to be affected.

This information must be included in project descriptions and permit applications under the Navigable Waters Protection Act and the Canadian Environmental Assessment Act. 

3. Implement strict safeguards for waterways within the framework of the United Nations-recognized human right to water and include a clause in the NWPA so that potential spills or discharge of harmful substances are assessed for their impact on all navigable waters.

In the report Our Right to Water: A People's Guide to Implementing the United Nations' Recognition of the Right to Water and Sanitation, Council of Canadians National Chairperson Maude Barlow outlines the three obligations the recognition of a human right to water imposes on governments: the obligations to respect, protect and fulfill. This includes government's obligation to prevent third parties from interfering with the enjoyment of the human right. For example, a government is required to protect a community from pollution by corporations or governments.

The potential impacts of a project such as the Energy East pipeline on navigable waterways -- including the impacts of potential spills -- must be assessed.

The difficulty of cleaning up diluted bitumen was made clear by a spill in the Kalamazoo River in Michigan in 2010. The Enbridge spill leaked the thick tar-like substance into the river for 17 hours before the pipeline was shut down. More than $1 billion was spent on cleanup,  that continues to this day. After the spill on the Kalamazoo River, sections of the river and Morrow Lake remained closed to recreational use and boating for nearly two years after the spill. Sections of the river also remained closed for dredging operations to retrieve some of the submerged diluted bitumen more than three years after the spill.

Oil spills or other pollution can seriously hamper navigable waters, drinking water, recreation and fishing. 

4. Hold thorough public consultations and independent expert panels and incorporate feedback to strengthen the NWPA

Right now only written comments are being requested by the Standing Committee on Transportation, Infrastructure and Communities. It is unclear how many people will be able to present to the Standing Committee.  Transport Canada has also been reaching out to stakeholders to gather comments for its presentation to the Standing Committee.

The Trudeau government has only announced public consultations and independent expert panels for its reviews on the Canadian Environmental Assessment Act and the National Energy Board. Protection for navigable waters affects residents and communities from coast to cost. The Trudeau government must also hold public consultations and create an independent expert panel for its review on the Navigation Protection Act.

5. Consult with Indigenous communities and incorporate the obligation to obtain free, prior and informed consent into the NWPA so that Indigenous treaty and water rights are respected and a nation-to-nation relationship is truly established.

The Harper government's 2012 budget bills and changes to the NWPA fanned the flames of discontent amongst Indigenous communities. The federal government not only washed its hands of protecting lakes and rivers, it also ignored the constitutional duty to consult with First Nations. Until the Trudeau government restores the NWPA, it is also neglecting this legal responsibility to consult with First Nations.

In January 2015, the Mikisew Cree First Nation won its legal challenge against Harper’s C-38 and C-45, which removed federal protection for most of the waterways in the traditional territory of the Mikisew Cree in northern Alberta. Federal Court Justice Roger Hughes ruled that the Harper government should have consulted with First Nations before introducing the omnibus bills C-38 and C-45 two years ago.

It is unclear how the Standing Committee will obtain free, prior and informed consent of Indigenous Nations  and how many Indigenous nations will be invited to present to the Standing Committee. 

In order to implement the UN Declaration of the Rights of Indigenous Peoples, free, prior and informed consent must be obtained from Indigenous communities on any changes to the NWPA, relevant regulations and all applications that are submitted under the act in order to fully respect Indigenous treaty and water rights.

6. Ensure that a consultation process is established that fosters true collaboration between communities and government so regulatory agencies implement community recommendations on an ongoing basis. Develop clauses that establish a community's right to say "no" to projects that threaten waterways and empowers communities to create low-carbon, sustainable jobs that safeguard water.

The Site C dam was recently approved despite it being built on the "protected" Peace River. 

Political Director Brent Patterson has described Site C as "a proposed 60-metre high, 1,050-metre-long earth-filled dam and hydroelectric generation station on the Peace River between the communities of Hudson's Hope and Taylor on Treaty 8 territory in northeastern British Columbia. It would create an 83-kilometre-long reservoir and flood about 5,550 hectares of agricultural land southwest of Fort St. John. It would also submerge 78 First Nations heritage sites, including burial grounds and places of cultural and spiritual significance. Logging and land clearing for the dam began last summer."

Site C has been vehemently opposed by First Nations and northern communities. UNESCO was recently on a monitoring mission to assess the impact Site C would have on the Peace and Athabasca Rivers which converge in Wood Buffalo National Park, a designated World Heritage Site.

Site C is a clear example of why the Navigation Protection Act needs a rigorous review and why the act must be amended to empower local communities to be able to say "no" to projects that threaten waterways.  

Be sure to send in your comments on protections you would like to see for navigable waters. Use the talking points above and tell Standing Committee members about navigable waters in your community and the importance of them. Together we can protect every lake and every river now and in the future. 

Learn more about the Council of Canadian's Every Lake, Every River campaign here.

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