Written Brief of the Athabasca Chipewyan First Nation to the Standing Committee on Transport, Infrastructure and Communities Regarding the Navigation Protection Act

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Written Brief of the Athabasca Chipewyan First Nation to the Standing Committee on Transport, Infrastructure and Communities regarding the Navigation Protection Act

Why protection of navigable waters matters to the Athabasca Chipewyan First Nation

The Athabasca Chipewyan First Nation (ACFN) is an Athabascan speaking Dene sułine people. Our core territory stretch north, east, west and south from the Peace Athabasca Delta in Alberta, including the Lower Athabasca River and lands to the south of Lake Athabasca, and the lands south of Fort McMurray. In Spring, Summer and Fall (the primary seasons for hunting, fishing, and subsistence procurement), boat access is still the only option for moving between Fort Chipewyan and seasonal camps and villages, Indian Reserves, and core ACFN territories in the Lower Athabasca River system and Peace Athabasca Delta. Travel by boat is part of our Treaty Rights Treaty 8 protects the way of life of the aboriginal signatories to that treaty.1 To begin to appreciate the importance of waterways to ACFN’s way of life, one needs only to as far as our Dene name for our people. We call ourselves K'ai Taile Dene, meaning "people of the land of the willow", a reference to the delta of the Peace and Athabasca Rivers and the fact that our Traditional Lands are covered by tributaries, creeks, streams, lakes and rivers. ACFN’s use of waters to travel by boat is also protected as an incidental right.2 Water-based access by boat is the preferred mode of practicing aboriginal and Treaty rights, including hunting, trapping, and fishing. As a result, our ability to maintain our identity as K'ai Taile Dene and practice our Treaty Rights depends on our ability to exercise our right to travel by boat. There are many activities in ACFN’s territory that adversely impact ACFN’s Treaty rights by impeding navigation. For example, the resource development in territory involves infrastructure, such as water intake facilities, that can physically obstruct our use of waters, create safety hazards, and increase the time and costs of using waters for navigation. In addition, oil sands projects can entail the withdrawal of millions of gallons of surface and/or groundwater and these withdrawals cumulatively reduce water levels and flow rates required for ACFN members to travel by boat. The diversion and elimination of rivers, streams and other tributaries by oil sands projects also impacts the ability of ACFN members to travel by water and access reserve and hunting lands.

1 R. v. Badger (1996), 133 D.L.R. (4th) 324; R. v. Horseman, [1990] 1 S.C.R. 901, West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247, 2 R. v. Sappier; R. v. Gray, 2006 SCC 54, at para 51. Our use of our Indian Reserves depends on travel by boat Aside from our Chipewyan 201 reserve, which is located in the Peace-Athabasca Delta, the rest of our Reserves are located along or in close proximity to the Athabasca River. In open water seasons, the primary (and often only) way of accessing our reserve lands is by boat. In recent years, there have been many times that our members are not able to access our reserve lands because water levels have been too low to travel (although apparently not low enough to reduce the massive water withdrawals from the Athabasca River). Members have also been injured when hitting sandbars during low water as shown in the following two pictures of ACFN Chief Allan Adam after hitting a sandbar when trying to access an ACFN reserve.

For ACFN, navigation is tied to environmental quality For ACFN, protection of navigation means protecting the conditions that support our use of waters for navigation. Our navigation and ability to travel depend on having, at a minimum, sufficient quantity of water, good quality of water and conditions that are safe. From an indigenous perspective, the ability to travel by water cannot be separated from the health of those waters. When the quality of water declines, that has cascading effects that reverberate through all aspects of our navigation: when activities impact the quality of water, our ability to exercise our navigation rights is negatively affected. That is because our ability to travel by water is so closely tied to the spirit of the water and the ability of the water to support the aquatic and terrestrial species we harvest. Navigation protections have a direct bearing on reconciliation Given the linkages between navigation protections and ACFN’s ability to exercise its Treaty rights and utilize its reserve lands, it is clear that federal regulation of navigable waters has important implications for reconciliation. Reconciliation cannot be achieved by, measures that

2 reduce navigations protections, circumvent the duty to consult, and fail to incorporate modern safeguards are harmful to reconciliation. Similarly, federal protections of navigation have important implications for whether Canada is honouring its commitment to uphold the United Nations Declaration on the Rights of Indigenous Peoples. That declaration recognizes the right of indigenous people to maintain their relationship with their traditional waters and to uphold their responsibilities to those waters for future generations (Article 25). The Declaration also confirms the rights of indigenous peoples to determine priorities and strategies for development of their territories (Article 32). The Declaration also places an obligation on states to obtain the free and informed consent prior to the approval of any project affecting their territories and to provide effective mechanisms to mitigate impacts of activities on the territories of indigenous peoples (Article 32).

Canada is not sufficiently protecting ACFN’s navigation rights or the navigable waters that support those rights Reduced protections for navigable waters One of the most significant changes for ACFN resulting from recent amendments to Canada’s federal environmental laws has been the elimination of environmental considerations from decision-making under the Act. This was a sharp deviation from the long-standing recognition that the right of navigation requires safeguards against not only in terms of navigation but also environmental impacts that affect the use of navigable waters. Excluding environmental considerations from the Act creates a hole in federal environmental legislation. A “work” as defined in the Act may have environmental effects on navigable waters that would be omitted from the scope of other environmental statutes. For example, if a “work” would not cause serious harm to an Aboriginal fishery or was not described in the Regulations Designating Physical Activities, then an environmental review of impacts to the waterbody would not occur, even where impacts to the environment could affect navigation or otherwise be contrary to the public interest. The failure to consider environmental matters under the Act is particularly devastating for ACFN as navigation safeguards do ACFN little good if the activity that has the potential to impede their travel has environmental effects that were not considered when authorized.

Failure to protect navigation on countless waters used by ACFN Recent changes to the Act wholly eliminated navigation protections for many of the waters used by ACFN by shifting from an approach that provided protection to all navigable waters to an approach that only requires approvals for works that may affect those waters listed in the Schedule to the Act. The List of Scheduled Navigable Waters, which focuses only on Canada’s busiest waterways and those close to heavily populated areas excludes many of the waters of importance to ACFN that face activities that are likely to impede navigation. We do not just use waters that are important

3 for commercial activities, such as the Athabasca River. ACFN members use boats on the Firebag River, Clearwater River, Christina River, Muskeg River, MacKay River, Jackfish Creek, Cree Creek, Cutfish River, McIvor River, Ells River, Embarras River, Richardson River, Richardson Lake, Buckton Creek, Lake Mamawi and Lake Claire, among others. As a result of the recent changes in federal environment policy, the Muskeg River, the Clearwater River and many other waterways we rely on to access our traditional lands are no longer listed as navigable waterways and no federal authorization or environmental assessment is necessary if a project impedes navigation on them.

One of the most pernicious effects of the Act is that, by removing federal decisions for the vast majority of Canada’s waters, the Act circumvents the duty to consult and leaves litigation as the only avenue for safeguarding navigation in many instances. This is unfair because it pushes ACFN into a court system that is highly adversarial and that is more costly than an Aboriginal consultation process, which is a process that has the purpose of promoting reconciliation and minimizing impacts to treaty rights. In addition, federal oversight has, in our experience, meant that proponents had an incentive to work with ACFN and the federal government to try to address potential impacts to our ability to travel by boat. The provisions in the Act allowing Cabinet to add waters to the Schedule do not overcome the failings of the Schedule-based approach. First, protections for our Treaty rights are not a discretionary matter. Second, the Act only allows non-federal requests to be made by a local authority (the definition of which does not include First Nations) and it is far from clear whether indigenous interests fall within categories such as national or regional economic interests.3

Insufficient navigational safeguards for those waters listed in the Schedule It is of serious concern to ACFN that the Act provides a number of powers for the Minister to reduce or eliminate safeguards confirmed by the Act without any clear criteria that guide or limit the Minister’s power and without a statutory requirement for consultation with aboriginal peoples about such changes. We highlight two examples. The Minister may make orders designating navigable waters on the Schedule as “minor waters,” which exempts them from the approval requirement and the protections related to obstructions.4 The Minister may also designate any work as a “minor work,” which is thereby exempted from the approval requirement.5 We already see problems with this approach: works currently designated as “minor

3 Navigation Protection Act, RSC 1985, c N-22 (“NPA”), s. 29. 4 NPA, s. 2(1): “designated work,” “minor water,” “minor work,” ss. 15-17, 19-20, 28(2). 5 NPA, s(1): “designated work,” “minor work,” s. 28(2)(a).

4 works” include aerial and underwater cables, certain types of pipelines and dredging that can adversely impact our rights.6 2012 changes to the National Energy Board Act also removed inter- jurisdictional pipelines and powerlines from the definition of “work,” and therefore the oversight of the Act entirely.7 By defining “work” purely in relation to physical things, the Act fails to regulate activities that can impact navigation and navigable waters. Water withdrawals (as opposed to a water intake structure) and flow regulation (as opposed to a dam itself) can have substantial effects on navigation that are not captured by the Act. One of the areas in Canada where the right of navigation has been most impacted is the Peace-Athabasca Delta, where flow regulation can make navigation impossible and have long-term effects on the ecological integrity of that World Heritage ecosystem.

Problematic delegation of Canada’s responsibilities The Act enables the Minister to delegate his or her responsibilities under the Act without requiring any kind of oversight.8 Provincial delegates in the oil sands region are, in our experience, likely to undertake poorer investigations into effects on navigation and navigable waters, and have greater incentives to make decisions that permit unnecessary and undue harm. We have attached a copy of our statutory review of Alberta’s Lower Athabasca Regional Plan. This is a clear and direct example of the negative impacts that exist when a provincial government fails to deal with issues related to treaty rights within the context of their land use plan.

Reduced clarity and transparency Changes to the Act have decreased transparency and reduced our ability to participate in decision-making processes. Provisions requiring proponents to notify the public about proposed works and enabling the public to submit written comments have been removed and have been replaced with unstructured discretionary powers.9 Orders designating minor works and waters are explicitly exempted from the requirement that statutory instruments be reviewed and scrutinized by Parliamentary committees, which may call on First Nations for input.10 Requirements for reasons to be provided for decisions are nowhere to be found. All of these changes are contrary to principles of inclusiveness and transparency.

Loss of opportunities to advance reconciliation Changes to the Act have also significantly reduced and in many cases eliminated two of the procedures Canada relies on to help reconcile Indigenous and non-Indigenous peoples’ interests. Specifically, environmental assessments and the duty to consult require the Crown to provide

6 Order Amending the Minor Works and Waters (Navigable Waters Protection Act) Order. 7 National Energy Board Act, RSC 1985, c N-7, ss. 58.201, 111. 8 NPA, s. 27. 9 Navigable Waters Protection Act, RS 1985, c N-22, s. 9. 10 NPA, s. 28(5); Statutory Instruments Act, s. 19.

5 information to First Nations about impacts and to consider potential impacts to First Nations’ rights and interests, but have been severely reduced in their application under the Act.11 This approach is inconsistent with principles of reconciliation, which involves a recognition that First Nations have a right to participate in decision-making processes that affect them. This approach is also inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples, which Canada has committed to implement.

Lack of modern safeguards Whereas some aspects of the Act were improved in 2012, Canada’s approach to safeguarding navigation remains outdated in a number of respects that are of particular relevance to the Peace- Athabasca Delta and the oil sands region. Failure to consider impediments to navigation due to climate change: The navigability of a waterbody is shaped and affected by natural and anthropogenic factors. Historically, the navigability of a waterway was assumed to be intact unless or until specific, direct human activities created physical interferences. This has led to a legislative approach that focuses exclusively on direct human impacts to navigation. It is now abundantly clear that this narrow perspective does not address the actual breadth of threats to navigability and that proposed impacts to navigation have to be considered within the context of the non- stationary hydrologic environment, including the effects of climate change. For example, climate extremes are becoming greater in magnitude with heavier precipitation, more prolonged droughts and larger floods to be expected. Changes in timing of water availability are another common theme from climate change. The more intense hydrologic environment leads to changes in the geomorphic environment through processes, such as bank instability/erosion, bed scour, landsliding, with yet further consequences for navigation. All of these climate-related effects have implications for navigability. A direct influence of climate change on navigability results from changes in the timing and quantity of water in a waterbody. A waterbody may become seasonally non-navigable due to a decline in water availability. As levels of global greenhouse gas emissions escalate, the primary and secondary effects of climate change will likely become an even more significant factor in shaping navigability. Unfortunately, the Act does not require decision-makers to consider how climate change may affect whether a proposed activity impacts navigation. Nor does the Act require the Minister to gather data, conduct cumulative effects assessments, or develop climate change planning tools for water systems affected by climate change. We fail to see how the Minister can achieve her mandate, and Canada to achieve its international conventions without the ability to assess or develop tools required with respect to Climate Change.

11 Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 46.

Lack of planning tools - the need for flow need frameworks: The Act will remain outdated and limited in its ability to provide necessary navigational safeguards for as long as it continues to take only a reactive approach to protecting navigation. That is because the reactive approach cannot ensure that the combined effect of “works” and activities in Canada’s waterways are managed in a way that respects navigational needs. In this regard, a significant flaw in the Act is that it fails to establish a system that allows for the establishment of flow need frameworks for the waterbodies on which navigation is at risk from flow regulation and water withdrawals. Navigation flow need frameworks that are enforceable under the Act would modernize the Act and create a more predictable and effective protection of navigation. ACFN is proof that this work can be done in order to better safeguard aboriginal navigation of inland waterways and to promote reconciliation. Below we attach a case study of the initiative developed by ACFN and the Mikisew Cree First Nation to identify and verify a water flow threshold to protect aboriginal navigation on the Lower Athabasca River and in the Peace- Athabasca Delta. This exciting and empowering case study demonstrates that it is possible to develop navigation flow need frameworks that are protective of the exercise of Treaty rights. Equally exciting, the case study also highlights the role that community-based monitors can play in tracking navigability issues and, should the Act be modernized, supporting credible regulatory decision making.

What is required to establish necessary navigational safeguards? Make Reconciliation a primary object of the Act 1. Incorporate principles of Reconciliation: Modern legislation that has a bearing on Treaty rights must explicitly recognize principles of reconciliation. Consistent with this Government’s position that the United Nations Declaration on the Rights of Indigenous Peoples is best implemented through topic-specific legislative instruments, the Act should clearly state that one of its objects is reconciliation and that decision-makers must consider how their decisions may impact reconciliation. See also recommendations 8 & 9 below.

Restore Lost Protections 2. Restore consideration of environmental effects in the authorization process: The Act should require that decision-makers consider the environmental effects of activities that may impact navigation and restore linkages to federal environmental assessment legislation. In its platform, the Liberal Party acknowledged that the Act is an environmental statute.12

3. Restore the broad criteria for defining navigable waters: To be consistent with its purpose, the Act should return to a model that provides broad criteria for determining the waters subject to the Act and avoids the flawed, voluntary “opt-in” procedure. The criteria

12 Liberal Party of Canada, “Real Change: A New Plan for Canada’s Environment and Economy” (2015), available: Canadas-environment-and-economy.pdf> at 10.

for defining navigable waters could follow the common law definition of navigability (as the NWPA did) or be derived from Transport Canada’s Navigability Assessment Framework, which is substantially similar to the common law model.

An alternative, although less preferable, model would be to include two independent criteria. The first would be whether a waterbody is included in a Schedule, which would be updated through a process of indigenous consultation. The second would be whether a waterbody is or may be used for the purpose of exercising section 35(1) rights. This second criterion could be efficiently assessed if the Act included a public notice process or a notification regulation that required engagement with First Nations. Similar notice processes are used in other jurisdictions with considerable efficiency.

4. Restore mandatory notice and comment opportunities: Returning basic standards of transparency and public participation need not come at the expense of expediency. The creation of an online registry and a regulation setting out information requirements would allow notice and comment periods to be conducted efficiently.

5. Circumscribe or structure Ministerial discretion: The Act should either eliminate the Minister’s power to designate minor waters and minor works, or establish both limits on size or magnitude of impact regarding what can be designated as minor works and require public consultation on such designations.

6. Eliminate the power to delegate responsibilities under the Act: To ensure consistency and maintain high standards, the Act should eliminate the power to delegate responsibilities.

Incorporate modern safeguards 7. Update the definition of “works” to include activities that may impact navigability: The Act was developed at a time when no one could have foreseen that industrial activities could withdraw tens of millions of cubic metres of water from a single water source and when there was a limited understanding of the downstream effects of flow regulation on navigability. The Act should no longer ignore such activities as they can profoundly impact navigation.

8. Establish mechanisms for shared governance: ACFN has expressed interested in being part of a shared governance model in relation to navigable waters connected to the Peace- Athabasca Delta World Heritage Site. The Act would benefit from providing the Minister with authority to enter into collaborative decision-making processes with First Nations.

9. Establish a system for developing Navigation Flow Need Frameworks: Closely related to recommendation #8, the Act must allow for the creation of federal navigation flow need thresholds in order to safeguard navigability and aboriginal rights. ACFN suggests that the Act accomplish this through a new scheme that provides the Minister with authority to develop such frameworks and a regulation designating those waterways for which flow need

frameworks are required. To assist with selecting waterways for inclusion in the regulation and otherwise promoting effective safeguards, the Act should also empower Transport Canada to undertake strategic navigation assessments and to implement the results of such assessments to better protect navigability.

10. Establish a category of “At Risk” waters: Navigation in the Peace-Athabasca Delta and the Athabasca River is particularly at risk from the way that the flows of the Delta’s tributaries have been and continue to be managed. Where navigability has been severely impeded from cumulative works and activities, the Act should provide the Minister with authority and a corresponding responsibility to take corrective measures to restore navigability, particularly with respect to the protection of treaty rights.

11. Recognition and incorporation of Indigenous Knowledge: To be consistent with the United Nations Declaration on the Rights of Indigenous Peoples and the Prime Minister’s mandate letters, the Act should require incorporation of indigenous knowledge in decision- making under the Act. Establishment in the Act of flow need thresholds pertaining to aboriginal navigation is also essential in this regard.

12. Enshrine consultation requirements for decision-making under the Act: Uncertainty regarding requirements for indigenous consultation under the Act is a barrier to productive engagement and provides an incentive to resort to litigation. Defining when consultation is required under the Act and what it will look like will give First Nations confidence that the process will be fair, and will clarify the obligations of the Crown and proponents.

13. Mandate requirements and assessments related to climate change: Considering the effect of climate change on navigation can be accomplished by: a. expanding the scope of factors to be considered when a proponent proposes a “work” in a navigable water; b. requiring the Minister to gauge the flow of waters included in a schedule to the Act so that trend information is available to guide decision-making; and c. including climate considerations in a regulation that sets out information requirements for applications to clearly identify the types of assessments that proponents must undertake.

14. Mandate requirements and assessments related to treaty rights: Assessments that seek to reduce the impact to treaty rights can be accomplished by: a. Expanding the scope to be considered when a proponent proposes “work” that may impact navigable waters used in the exercise of treaty rights b. Requiring assessments of what is required for navigation for the exercise of treaty rights. c. Requiring the Minister to include treaty right protections within the information requirements for applications and within the final decision document.

About the Athabasca Chipewyan First Nation

ACFN is a “band” under the Indian Act, with an administrative centre in Fort Chipewyan and offices in Fort McMurray, Alberta. We are an Athabascan-speaking people who call ourselves K'ai Taile Dene, meaning "people of the land of the willow"; a reference to the delta of the Peace and Athabasca Rivers. Ancestors of the present-day ACFN signed Treaty 8 at Fort Chipewyan in 1899. Members of ACFN continue to hold the rights guaranteed by Treaty 8, including hunting, trapping, gathering and fishing rights.

Case Study of the Navigation Flow Needs of the Athabasca Chipewyan First Nation on the Lower Athabasca River and Peace-Athabasca Delta Prepared by: Dr. Martin Carver, PEng/PGeo, PAg (BC), PGeo (AB)

1. Background to the Athabasca Chipewyan’s Navigation Flow Needs project

The lower Athabasca River in northern Alberta is the transportation life blood for First Nations people who have lived in the area for time immemorial. This section of the Athabasca River stretches from Fort McMurray to Lake Athabasca, and to other waterbodies in the Peace- Athabasca Delta, interconnecting First Nations settlements and providing access to Aboriginal territories for hunting, fishing, trapping, and other traditional-use activities.

The figure to the right shows transportation routes commonly used by the Athabasca Chipewyan First Nation (ACFN) on the lower Athabasca River and in the Peace- Athabasca Delta. The navigable season begins at spring break-up in May, extending to freeze-up, typically in early November. It is essential that transportation routes remain navigable during these times so that community members are able to exercise their traditional-use rights.

In recent decades, these waterways have been subject to increasing pressures that have implications for navigability. These pressures include a surge in the amount of water withdrawals from the Athabasca River associated with oilsands projects and the ongoing regulation of the Peace River that causes declines in water depth and amplifies the losses resulting from oilsands withdrawals. The complex interplay of Athabasca River oilsands withdrawals and Peace River regulation is aggravated by the effects of climate change, which is resulting in a long-term decline in water availability. Together these pressures have resulted in negative effects on the navigability of these waterways and the ability of ACFN to exercise their traditional-use rights.

Historic trend in mean annual flow and seven-day low flow of the Athabasca River below Fort McMurray (Water Survey of Canada station 07DA001).

2. Community Response to Declining Navigability In response to declining navigability, the Athabasca Chipewyan First Nation and the Mikisew Cree First Nation initiated and sponsored a long-term program of community-based monitoring to track and assess water depth in the Peace-Athabasca Delta and the adjacent reaches of the lower Athabasca River and its distributaries. The program was specifically structured to quantify the spatial and temporal extent of the navigability problem and to identify potential management solutions. Of particular interest was determining whether there are identifiable thresholds in loss of navigability in relation to easily-accessed objective monitoring information.

Using five years of data on navigability gathered throughout the territory, this community-based initiative identified thresholds in lost navigability, partitioned by zone, and indexed to routine monitoring information from a nearby federally-maintained hydrometric station (Water Survey of Canada station 07DA001, just downstream of Fort McMurray). In particular:

 ACFN has been able to establish four feet as the minimum water depth needed to successfully access their territory because this is the depth needed to transport a fully loaded boat back to Fort Chipewyan after a hunt. This minimum depth is required throughout these territorial travel routes, including the Athabasca River, its distributaries and the waterways within the Peace-Athabasca Delta.  ACFN has been able to determine that water-depth data from the southern zone of the territory show a strong correlation with Athabasca River discharge and indicate that at a flow rate of 500 m3/s (WSC 07DA001), navigability is substantially lost throughout the southern zone of the territory (Carver and Maclean 2016).

The figure below demonstrates this behaviour through a preliminary equation relating water depth at Embarras River near Cree Creek to the flow of the Athabasca River (WSC 07DA001). The Embarras River is a critical Mikisew navigation route. The threshold revealed in this plot has been termed the Aboriginal Extreme Flow and is defined as the Athabasca River discharge below which widespread disruption of traditional use occurs due to loss of navigability into prime seasonal harvesting areas (Candler et al. 2010). At the Embarras site, the threshold is 450 m3/s whereas overall, at all southern sites considered together it is, on average, at 500 m3/s.

Water depth in relation to the Athabasca River flow as measured at WSC 07DA001. 500

450 0.57 D = 5.10 (QFM - 181.79) 400 R² = 0.91 350 Embarras R. near

(cm) 300 Athabasca R. 250

200

Mean Depth Mean 150

100

0 0 500 1000 1500 2000 2500 3000 Discharge (m3/s), Athabasca River below Fort McMurray 12

ACFN is now able to track when water levels and water flows decline in the Athabasca River to the point where the right of navigation is made impossible to exercise. For example, the ACFN data show that, for a majority of the open water weeks of 2015, between 35 and 55% of the sites monitored by ACFN’s program on the Athabasca River fell below the water depth needed for indigenous navigation.

As illustrated by the following photos showing conditions associated with low flow rates in the Athabasca River (WSC station #07DA001), the inadequate navigational safeguards pose real challenges to the ACFN members when attempting to navigate in their territory. Photo 1 was taken in the fall of 2015 when Athabasca River flow was at 368 m3/s. Navigation was essentially at zero, meaning that no ACFN member could leave the harbour to fish, hunt, gather, pray, or otherwise exercise Treaty rights. Photo 2 is from the fall of 2016 when Athabasca River flow was at 319 m3/s and shows an ACFN Elder pulling a boat across a sandbar on the Embarras River near Cree Creek, in the southern Peace-Athabasca Delta. Transportation was lost to traditional areas and for purchasing supplies in Fort McMurray.

Photo 1: Flow of 368 m3/s (Sept 27, 2015) Photo 2: Flow of 319 m3/s (Oct. 15, 2016)

3. Lessons Learned: Protecting Navigability through a “Navigation Flow Need”

1. Many Factors Affecting Navigability Are Unrecognized in the Navigation Protection Act The data gathered by the ACFN community-based monitoring program and corroborated by leading federal and non-governmental researchers clearly show that physical obstructions are responsible for only a part of the demise of navigation rights in the lower Athabasca River and the Peace-Athabasca Delta. This case study shows that a complex of factors is responsible for the demise of these navigable waters and the navigation opportunities that have traditionally been provided by them. Given the advance of industrialization and climate change, it is expected that these factors are important in many areas now and will grow in importance in the coming years.

2. Identifying Navigation Flow Needs is Possible

This case study demonstrates that it is possible to establish thresholds for Navigational Flow Needs. If a First Nation, like ACFN, has been able to establish a rights-based navigation

13 threshold, there is no reason why Canada cannot develop similar thresholds to better safeguard the navigability of inland waters.

It is greatly unfortunate that the costs of developing this rights-based navigation threshold and of monitoring its performance had to be borne by ACFN without any significant involvement from Canada, including Transport Canada. A related lesson from ACFN’s experience is that, in the absence of front-end legislated protection of navigability and navigable waters, the Act will continue to put the burden of identifying and documenting their losses in navigation on impoverished communities when proactive solutions are available.

3. The Navigation Protection Act Must Contain Provision for a “Navigation Flow Need”

There are thresholds within aquatic systems that, when crossed, lead to a loss in the ability of those systems to deliver the goods and services which are associated with them. Environmental flow needs are widely recognized and have been discussed in thousands of scientific publications. (See Linnansaari et al., 2013). This case study has demonstrated that there are thresholds in navigation systems that must be respected if their navigation value is to be maintained. This case study has also demonstrated that Canada’s navigation safeguards can be strengthened through the recognition of a “Navigation Flow Need” and inclusion of measures to assure its maintenance in Canadian navigable waters. 4. References

Candler C, R Olson, S DeRoy with ACFN Cree First Nation 2010. As Long As the Rivers Flow: Athabasca River Use, Knowledge and Change, Firelight Research Cooperative, 84 p.

Carver M and B Maclean 2016. Community-Based Water-Depth Monitoring in the Peace-Athabasca Delta: Insights and Evaluation. ACFN Creek First Nation and Athabasca Chipewyan First Nation, 54 p.

Linnansaari T, WA Monk, DJ Baird and RA Curry 2013. Review of Approaches and Methods to Assess Environmental Flows across Canada and Internationally. DFO Canadian Science Advisory Secretariat. Research Document 2012/039, 75 p.