Does Bill C-69 impede science by fogging the link between the environment and navigable waters?
It is often said that water knows no political boundaries. The same waters that float a canoe, provide water for deer to drink, and for fish to swim. However, the political pen can fail to account for the full value of rivers.
Truth has become an elusive commodity in the era of “fake news”. What used to be scientific fact is now open to speculation. This trend has extended to Canada’s federal environmental laws - in particular to protecting the public’s right of navigation and navigable waters. Navigation safety requires protection from physical obstructions in the water, but also from the dumping of harmful substances, or the dewatering of navigable waters. Federal decisions about projects obstructing navigation would impact the physical, biological, and chemical function of water flows. The link between the environment and navigable water protections should not be up for dispute.
Water quality affecting the safety of a paddler will no doubt impact wildlife. One need not look far to find examples. The Boreal Caribou are a threatened species whose habitat has been put at risk by human land-use and climate change. Their populations have declined across Canada as the construction of linear developments force their migration further north. Caribou have been called the “canary in the coal mine” of Canada’s boreal ecosystems. Coincidentally, the Reindeer River in northern Saskatchewan, along with many of Canada’s northern rivers, is also threatened by unregulated development.
Perhaps now a foggy memory, but when changes were made to the Navigable Waters Protection Act (which became the Navigation Protection Act in 2012), environmental organizations, opposition parties, and the Idle No More movement among many others rose up against what was dubbed the “gutting of Canada’s environmental laws.” Since 2009, an intensive gaslighting campaign and edits to Transport Canada’s website erased a century of legal practice that recognized environmental protection alongside navigation safety.
As a result of changes made by the previous administration, only a tiny fraction of Canada’s navigable waters are on an exclusive list of “scheduled waters” for protection. Until a new law is enacted, bridges, dams, and other projects that could threaten the flow of millions of lakes, rivers, and streams can be built on “unscheduled waters” without even so much as notice to the public.
The questionable way the previous administration assembled this list of protected waters raises many questions. How is it that many waters in the path of the Energy East pipeline were left off the list? And why is it that heritage rivers and world-renowned wilderness routes were not included? What role did the sway of federal ridings play in all of this?
Campaigning on the promise to reform environmental laws, the current government has half-met commitments to restore and modernize federal protections with legislation introduced earlier this year. Bill C-68 does justice to the Fisheries Act but Bill C-69, which bundles changes to energy regulation, impact assessments, and protection of navigable waters, leaves some glaring gaps. The infamous “schedule” of protected waters was kept. Though the new legislation requires approval for major works on navigable waters, the proposed Canadian Navigable Waters Act stops short of protecting the environmental, social, and cultural value of all navigable waters.
Major changes to navigation protection were not corrected and people are once more outraged. Recently, Pamela Palmater a prominent Mi’kmaq lawyer along with Maude Barlow of the Council of Canadians called on the Prime Minister to scrap the proposed legislation in favour of laws that would better protect water and implement the UN Declaration on the Rights of Indigenous Peoples.
Broader social and environmental values associated with navigable waters remain outside of the narrow conception of navigation protection. The loss of an “environmental trigger” for navigable waters under the Canadian Environmental Assessment Act has not yet been restored within the proposed Impact Assessment Act. Project approvals should not be made without scientific understanding of potential environmental and cumulative impacts. As Nature Canada’s Stephen Hazell said in testimony before the parliamentary committee reviewing the Act, “sometimes an environmental assessment of a park bench is necessary. If it's adjacent to a mountain caribou path, that might be something to take a look at.”
Environmental groups are open to reason but the pendulum has swung too far away from environmental protections for navigable waters and it has not swung back with Bill C-69.
Our most engaged supporters have made it clear that protecting the environmental value of navigable waters was top-of-mind.
Together, we are calling on the federal government to:
- require the consideration of environmental impacts of works on navigable waters;
- require all (non-minor) projects on navigable waters to undergo a federal approval;
- track the cumulative impact of all projects (including minor works) using a publicly accessible online registry;
- and enable shared decision-making with Canada’s First Nations, Inuit and Métis peoples.
It does not take a scientist to understand that land, water, and species habitat are linked. So why not apply some common sense and restore the legal link between navigable waters and environmental impacts? Better yet, bring environmental laws into the 21st century by ensuring decisions are informed by an understanding of the cumulative impacts of several projects along a waterway.
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