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.

Erin Flegg -Jan 1st, 2013 Creative Commons photo of Hartley Bay by Erin McKittrick

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."

Industry interests on First Nations land

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.

A direct attempt to undermine environmental protection

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.

Bypassing First Nations' opposition

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.

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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From VancouverObserver.com

Harper government bills that sparked Idle No More

Jenny Uechi Posted: Dec 29th, 2012 Photo by Isabeau Doucet

One of the first questions that people ask about the Idle No More movement is what the movement is all about. While the historical injustices experienced by First Nations are too many to list, some activists say the current government is pushing through a range of new bills that violate treaty rights. Despite the fact that some bills received input from Aboriginal representatives, opponents argue that the changes are too broad and lack support.

"Never in history has there been so many bills regarding and impacting First Nations been pushed through the House of Commons at one time," an Idle No More document released by activists reads. Below is an excerpt adapted from the document, outlining the eight bills and amendments which have sparked protests across the country.

Bill C-45: Jobs and Growth Act (Omnibus Bill)

I. Land Surrenders

This process prevents any debate or Grand Chiefs to present views of amendments

Changes toIndian Actwithout sufficient consultation of communities

Lowers threshold for the surrender of reserve lands

II. Navigable Waters Act

The federal government vacates jurisdiction over waters, parks, fisheries, etc. and the responsibility and duty to consult, honour treaty rights

Allows provinces to have more powerful expropriation powers

The current federal government has expressed wishes to "unlock" First Nations' lands for the maximized benefit of Canadians

Bill C-428: Indian Act Amendment and Replacement Act

Rob Clark's Bill to Repeal the Indian Act altogether

Doesn't acknowledge a band's abilities to pass band by-laws

• Takes away the power of bands to pass by-laws to prohibit alcohol on reserves - by taking power away to create by-laws and govern
Bill S-2: Family Homes of Reserve Matrimonial Interests of Rights Act

Does not recognize any First Nation by-laws that already set out matrimonial property laws

Legal rights can be given to non-Indians over holds on lands on-reserve

• Land, protected under treaties, exclusively for First Nations, can be given and transferred to non-First Nation people through this bill
First Nation Education Act

Incorporates and imposes provincial laws into First Nation education on reserves

The bill violates treaty right to education

• The federal government wishes to nationalize, control and legislate the treaty right to education

Federal authorities will hand jurisdiction to the Province - not just stepping away from treaty obligations, but also funding obligations

Bill S-212: An Act to Amend the Interpretation Act

Non-Derogation of Aboriginal and Treaty rights

Bill S-212: First Nations Self-Government Recognition Bill and FNPOA

The 1887 Dawes Act (United States) in Canadian form (privatization of reserve land: will take community-held reserve lands and divide up into individual parcels)

This land can be sold to non-Indians and corporations, like any provincial lands, under provincial laws and registries, with no Aboriginal or Treaty rights associated anymore
After the Dawes Act, more amendments were set to go and over half of the privatized lands were given to government, military, and corporations for resource extraction
To put a pipeline (e.g. proposed Enbridge Northern Gateway pipeline) through a community, the community's consent is no longer needed on the same level as in the past: just the individual people whose property the pipeline would go beneath

Bill S-8: Safe Drinking Water for First Nations

Will give the federal government the power to set up rules and regulations around water and sanitation and will be able to force Chief and Councils to do whatever federal authorities see as necessary on water
They can demand that Chief and Councils fix water systems, but if there is no money to do so, it is taken from band operating funding formulas (that pays for housing, social assistance, etc.)

If the federal government's contractors mismanage a project, the federal government is not liable

Transfers jurisdiction and pushes provincial laws on reserve lands

Bill C-27: First Nations Financial Transparency Act

This bill will force First Nations to open up all the books, source revenue, and business revenue (for the public)

Failure to make business information public can result in being taken to court and having funds to the community cut off

Currently, if leaders speak up, they risk having budgets slashed

The average salary for a First Nation leaderis $36,845,while thesalary of the average Canadian is $46,345

Bill S-207 An Act to amend the Interpretation Act: Non-Derogation of Aboriginal and Treaty Rights are not only violations to treaties, but are also in direct violation of Article 18, 19 &20 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

For more, see www.IdleNoMore.ca

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Canadian Government Legislation that undermines responsibilities and First Nation treaty rights

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.

Harper government bills that sparked Idle No More

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