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

Some First Nations and conservationists believe the new Navigation Protection Act will further undermine the health of Canada's waterways.

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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.

Loss of opportunities for public input

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.”


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