Review of Environmental and Regulatory Processes 3. Navigation Protection Act
Brief by the Essipit Innu First Nation and the Nutashkuan Innu First Nation
[Logo]
Essipit Innu First Nation
[Logo]
Nutashkuan Innu First Nation
Submitted to the House of Commons Standing Committee on Transport, Infrastructure and Communities
December 23, 2016
Page 1 of 11
Review of Environmental and Regulatory Processes 3. Navigation Protection Act
Contents 1. Introduction ...... 3 1.1 Background ...... 3 1.2 Interrelations between the four components of the Review ...... 4 2. Quality of consultation ...... 4 3. Essipit Innu and Nutashkuan Innu First Nations ...... 6 3.1 Essipit Innu First Nation ...... 6 3.2 Nutashkuan Innu First Nation ...... 6 3.3 Land claims ...... 6 4. Water and the Innu Aitun ...... 7 5. First Nation rights with regard to navigation ...... 8 5.1 Innu holders of commercial fishing licences ...... 8 5.2 Navigation-related rights ...... 8 6. Issues surrounding the Navigation Protection Act ...... 8 7. Modernization of the Act ...... 9 8. Conclusion and recommendations ...... 11
Page 2 of 11
Review of Environmental and Regulatory Processes 3. Navigation Protection Act
Preliminary Note
To the House of Commons Standing Committee on Transport, Infrastructure and Communities (TRAN)
Due to the timing of this consultation and the delay in allocating funding, the Essipit Innu First Nation and the Nutashkuan Innu First Nation did not have time to submit this brief to TRAN. We hope, however, that the efforts and the work we have done will be taken into consideration in the review of the Navigation Protection Act (NPA).
It should also be noted that the Mashteuiatsh First Nation did not have sufficient time to submit a request to and seek the approval by resolution of its Council to use the name Pekuakamiulnuatsh Takuhikan in this brief. However, the latter were very much involved in the drafting of this brief and if any changes are to be made following the presentation of the brief to elected representatives, you will be notified and we will send you a copy of the resolution as well as the revised version of the document.
1. Introduction1
1.1 Background
The federal government launched the Review of Environmental and Regulatory Processes (the Review), one component of which was to review the Navigation Protection Act (NPA), which, in 2012 and 2013 (bills C-38 and C-45) amended the more aptly named (according to the Department2) Navigable Waters Protection Act (NWPA) and resulted in a significant reduction in the protection of countless rivers and lakes. Added to these changes were significant amendments to the Fisheries Act and the Canadian Environmental Assessment Act that further endangered fish and fish habitats.
The TRAN committee is responsible from reviewing the Navigation Protection Act and for ensuring that the duty to consult with Indigenous peoples is respected and that their rights, Aboriginal title, interests and concerns are taken into consideration. This should be one of the guiding principles of this Review.
1 This brief was prepared in collaboration with the First Nations of Quebec and Labrador Sustainable Development Institute, an organization under the auspices of the Assembly of First Nations of Quebec and Labrador. 2 To better reflect its intent: protecting navigation.
Page 3 of 11
Review of Environmental and Regulatory Processes 3. Navigation Protection Act
1.2 Interrelations between the four components of the Review
The Review is one of four components studied separately by various committees, according to different timelines. This approach limits the scope of the analyses because it fails to consider the obvious interrelations alluded to in the name of this extensive review.
The strong interrelations between the effects of projects pertaining to fisheries, navigation, federal environmental assessments and the activities of the National Energy Board (NEB) cannot be ignored. For example, if the Navigation Protection Act is not revised in a coherent manner and at the same time as the Canadian Environmental Assessment Act (see our brief3) and the Fisheries Act, certain development projects in or near aquatic environments could be implemented without first considering Indigenous fishing rights or the principles of sustainable development.
Furthermore, pursuant to the NPA, certain works (including buried pipelines and Pipelines and cables that are attached to an existing work) are not subject to notification by the Minister and therefore do not require an assessment of their impact on navigation. These are works designated as “minor” in the Minor Works and Waters Order, which also stipulates the conditions that must be respected by the persons responsible for these works. Responsibility for assessing compliance with the Order rests with the project proponent and no intervention by the Minister is required.
We have here a clear example of in interrelations between the four statutes currently under review: the National Energy Board Act, the Canadian Environmental Assessment Act, the Navigation Protection Act and the Fisheries Act. The spill into the Chaudière River at Lac Mégantic in July 2013 is another example of these interrelations.
As is the case under the Fisheries Act,4 it is no longer necessary to obtain approval from the Minister of Transport in all cases. Instead, the Minister must be advised of the planned work and it is up to the Minister to decide whether approval is necessary. Approval is required only if there is a risk of serious interference with navigation.
2. Quality of consultation
Despite the government’s commitment to ensure the full participation of Indigenous peoples in this Review and to integrate their rights and interests in this process—as required under the Constitution— we find it necessary to draw the attention of the TRAN committee and the Minister of Transport to
3 Brief by the Pekuakamiulnuatsh, Essipit Innu and Nutashkuan Innu First Nations: Review of Environmental and Regulatory Processes - 1. Environmental Assessment Process, submitted to the Expert Panel for the Review of Environmental and Regulatory Processes and dated December 23, 2016, p. 15 (translator’s note: page numbers refer to French document; please verify). 4 Brief by the Pekuakamiulnuatsh, Essipit Innu and Nutashkuan Innu First Nations: Review of Environmental and Regulatory Processes - 2. Review of changes to the Fisheries Act, submitted to the House of Commons Standing Committee on Fisheries and Oceans on November 30, 2016, p. 12 (translator’s note: page numbers refer to French document; please verify).
Page 4 of 11
Review of Environmental and Regulatory Processes 3. Navigation Protection Act
major shortcomings in this area, especially the fact that we had to deal with very tight deadlines and very restrictive funding.
Further to the federal review of environmental and regulatory processes launched on June 20, 2016,5 we wish to express our views on reinstating the protective measures eliminated in 2012–2013 and ask that further protective measures be implemented under the Navigation Protection Act.
Furthermore, we would like to point out that any consultation or engagement process conducted by a committee of the House of Commons or of the Senate with limited travel opportunities is not a suitable means of ensuring the full participation of First Nations; it does not meet the Crown’s duty to actively seek to reach First Nations while offering them distinct opportunities to participate in the process.
Moreover, we had to deal with significant time and funding constraints in order to participate in the parliamentary committee’s engagement process. It is unrealistic and, in our opinion, disrespectful to have set a November 30, 2016,6 deadline for submitting briefs to the Standing Committee on Transport, Infrastructure and Communities, given that the committee’s study was only launched on October 4.
We did not received our funding notice until November 15, 2016—more than two months after we submitted a formal request7 for financial assistance. This notice stated that the funding could not be used before that date. Consequently, we had to prepare a brief between November 15–30 and December 7. This timeframe was quite unrealistic and unacceptable.
In light of these unacceptable circumstances, we want to ensure that we will be consulted on any draft legislation resulting from the Review that could impact our rights and interests with respect to our ancestral lands and resources.
We would also like to point out that, in addition to Canada’s commitment to consult Indigenous peoples (signatory to the United Nations Declaration on the Rights of Indigenous Peoples, Aboriginal Consultation and Accommodation Guidelines), several Supreme Court judgments also establish the government’s duty to consult us (see Haida, Tsilhqot’in and Mikisew decisions).
Furthermore, according to the federal government’s Aboriginal Consultation and Accommodation Guidelines, consultation should take place in two phases. The first phase, the preparatory phase, entails acquiring the necessary information, analyzing it, developing a consultative approach and determining our position. The second phase, the consultation phase, is an opportunity to share our positions and concerns, discuss them, negotiate possible accommodations, implement them and follow up.
5 We first heard of this review in an email dated August 11; that is, two months after the launch. 6 Despite a last-minute seven-day extension. 7 This request was quite burdensome and complicated to fill out.
Page 5 of 11
Review of Environmental and Regulatory Processes 3. Navigation Protection Act
3. Essipit Innu and Nutashkuan Innu First Nations
As explained below, the Essipit Innu First Nation and the Nutashkuan Innu First Nation, as well as the Pekuakamiulnuatsh First Nation, have strong ties and are linked by a treaty negotiated with Canada and Quebec. In light of this association, we share our thoughts on many issues of common interest, including those arising from federal government reviews.
3.1 Essipit Innu First Nation
The Essipit Innu First Nation is located 40 km east of Tadoussac on the north shore of the St. Lawrence Estuary. As of October 31, 2016, the band had 745 members, 207 of whom live on-reserve. Originally 0.4 km2 in size, the reserve was expanded in 1998 and now covers 0.89 km2. The Nitassinan or ancestral homeland of the Innu covers an area of 8,403 km2 divided almost equally between two administrative regions of Quebec, Saguenay-Lac-Saint-Jean and the North Shore. It extends from the Saguenay River in the west to the Portneuf River in the east. The Essipiunnuat take their name from the Escoumins River, formerly known as the Essesipi, which means “river of shells.” Much of its economic development revolves around the river. Apart from the traditional hunting and fishing activities on ancestral lands, fishing and hunting for food (cod, redfish, whelks, halibut, clams, seals, waterfowl, etc.) is practised in the area north of the St. Lawrence. In addition, the community has been vertically integrated into commercial fishing activities involving the operation of boats, processing plants, retail fish markets and catering operations, as well as the management of a marine product distribution network for sales in Quebec and for exports. Lastly, integrating tourism activities with the marine environment has been crucial to the development of Essipit. This includes whale-watching cruises, a kayak tour company and all the services associated with these popular activities, such as camping, cabins, condos and other related services. The community also operates five hunting and fishing outfitters and six guest accommodation sites.
3.2 Nutashkuan Innu First Nation
The Nutashkuan Innu First Nation is located on the edge of the Mid-North Shore, some 960 km from Quebec City. It has a population of more than 1,100 people. Its Nitassinan covers nearly 52,000 km2, part of which straddles the Jacques-Cartier Strait in the Gulf of St. Lawrence and a significant portion of Anticosti Island. This large territory, with its many rivers, including the Natashquan and Aguanish, which are often frequented by Atlantic salmon, support traditional fishing activities. Commercial fishing (cod, halibut, lobster, crab and other groundfish) is practised in its marine environments. Some industrial activities and major projects such as the harnessing of hydroelectric power on the Romaine River and mining exploration for uranium and other minerals take place in the Nitassinan; however, there is insufficient potential for commercial forestry activities. Lastly, there are numerous resorts and outfitters on the Nutashkuan territory, some of which are owned by the First Nation.
3.3 Land claims
The Essipit Innu First Nation, the Nutashkuan Innu First Nation, the Pekuakamiulnuatsh First Nation and the governments of Canada and Quebec are signatories to the Agreement-in-Principle of General Nature
Page 6 of 11
Review of Environmental and Regulatory Processes 3. Navigation Protection Act
Between the First Nations of Mamuitun and Nutashkuan and the Government of Quebec and the Government of Canada (APGN), the foundation for a treaty that has been under negotiation for more than 12 years. Among other things, this modern treaty seeks to define the effects of our rights and Aboriginal title on our respective ancestral lands. This negotiation with the Government of Canada lends weight to this brief.
4. Water and the Innu Aitun8
Water is, first and foremost, a source of life for all beings, and especially so for us because of its important spiritual and physical attributes. The Innu believe that we belong to the world; the world does not belong to us. We form an indivisible whole with the environment and water is an integral part of our way of life.
Since time immemorial, we have practised Innu Aitun, our traditional activities, on the Nitassinan. In the past and still today, Innu Aitun involves the use of lakes and rivers to travel to family lands, feed ourselves, engage in commerce and meet other Indigenous peoples. Summer gatherings take place at the mouths of major rivers and on the shores of large lakes. On these waterways, fish (salmon, landlocked salmon, walleye, char, whitefish, burbot, pike, etc.) are fished, and game (migratory birds, beaver, caribou, moose, bears, seals, etc.) are hunted and trapped. Still today, we travel, often by water, to where the beaver and family traplines are located; and over the course of the seasons, we gather most of our food supply from the land.
For our communities, the food fisheries continue to be an important subsistence activity. For this reason, any obstacle to fishing and the integrity of fish habitats could jeopardize our livelihoods.
Life on our Nitassinan, and Innu Aitun in particular, persists because it relies heavily on traditional knowledge that is constantly updated and modernized. This knowledge allows us to understand the impacts that projects have the environment in a way that differs from how project proponents, scientists and technicians interpret them, and thus allows us to contribute to the analysis of the impacts of projects affecting fish and fish habitats and the solutions to be implemented. For example, sampling plans for environmental impact assessments (EIAs) could benefit from the knowledge held by Indigenous inhabitants of the territory.
Lastly, many First Nation individuals are dependent on navigation and its direct link to fishing activities for their livelihoods. In fact, food fisheries support many First Nation individuals and families in Quebec, especially in inland communities that do not have access to the commercial fisheries. Furthermore, waterways are essential not only for the survival of fish, but also for the survival of many wildlife and plant species used by the First Nations for subsistence purposes.
Access to navigation activities is therefore crucial to maintaining our identity, our culture, our economy and our means of subsistence. This is one of the reasons why projects with potential impacts on navigation that fall under federal jurisdiction should undergo reliable environmental assessments.
8 See the definition in the Agreement-in-Principle of General Nature Between the First Nations of Mamuitun and Nutashkuan and the Government of Quebec and the Government of Canada, p. 4.
Page 7 of 11
Review of Environmental and Regulatory Processes 3. Navigation Protection Act
Moreover, this should be the case for all waterways and bodies of water in Canada, not just a limited number of them, as decided by the government when it implemented the new NPA without consultation.
To summarize, the Essipit Innu First Nation and the Nutashkuan Innu First Nation believe that fish habitats, lakes, rivers and gulfs and, consequently, fishing, are a key environmental, social, cultural and economic interest that bind our identity, our culture, our economy and our means of subsistence to any future legal and regulatory framework that will ensue from any changes the federal government makes to the Navigation Protection Act.
5. First Nation rights with regard to navigation
5.1 Innu holders of commercial fishing licences
Apart from Innu Aitun, fishing activities are also of significant economic importance, particularly for two of our communities on the shores of the Estuary and Gulf of St. Lawrence, which have been engaged in commercial fisheries for many years. These fisheries provide major economic leverage and opportunities (processing, job creation, training programs, etc.).
5.2 Navigation-related rights
The importance of access to navigation-related activities has been reiterated in several cases involving First Nation fishing rights. Suffice it to mention Claxton v. Saanichton Marina Ltd, which defines the First Nation territory in terms of watersheds (Supreme Court of Canada, 2008), and Van der Peet (Supreme Court of Canada, 1996), which found that the rights and interests of First Nations also apply to “land and water.”
That is why we have been very concerned that all our rivers, including the Ashuapmushuan, Péribonka, Portneuf, Escoumins, Aguanish and Natashquan, as well as our countless lakes, have be excluded from the Navigation Protection Act’s List of Scheduled Waters since 2012.
6. Issues surrounding the Navigation Protection Act
The NPA, which significantly reduced the scope of its predecessor, the Navigable Waters Protection Act, has given rise to many issues and concerns, including:
√ Significant reduction in the list of lakes and rivers that would require government approval prior to infrastructure projects and other potential interferences to navigation: o Of 8,500 rivers, only 162 (1.9%) remain on the Schedule. Of these, only seven are in Quebec and none are located east of the Saguenay region. The rivers removed from the Schedule include the Péribonka, the Mistassini, the Moisie, the Natashquan and the Romaine.
Page 8 of 11
Review of Environmental and Regulatory Processes 3. Navigation Protection Act
o Of Canada’s 2,000,000 lakes, on 97 (0.005%) remain on the Schedule. Of these, only three are in Quebec. One of the lakes no longer on the Schedule is Lac Mistassini. o Apart from the three oceans, which are still on the Schedule, all other sources of drinking water, spawning sites; fish, mollusk, crustacean and other marine-mammal habitats; and aquatic plant habitats are considered to potentially contain mineral deposits, bridges and other “works.”
More than 99% of the water bodies and the vast majority of waterways frequented by our First Nations are no longer protected under the NPA.
√ Significant increase in traffic and risk of spills. In 2014, the NEB authorized Enbridge to reverse the flow of oil in Pipeline 9B to carry 300,000 barrels of crude oil from western Canada to Montreal. Enbridge also has tankers carrying crude oil to the Valero refinery in Lévis. Pipeline 9B pipeline crosses several rivers in southern Quebec, and a leak could contaminate drinking water sources.
√ Consultation process weakened or eliminated o Lack of consultation of the First Nations as a result of amendments to the Navigation Protection Act and other enactments that are the subject of this Review has been repeatedly pointed out, including before the Standing Senate Committee on Energy, the Environment and Natural Resources (ENVI, 2012). However, the fact that 99% of lakes and rivers are no longer protected by the NPA means that proponents can erect works without the Minister’s approval. The Minister’s discretionary powers foster unconstitutional conduct by violating the duty to consult and accommodate. o The 15 provisions governing public notices and the submission of comments on the implementation of works are now optional, which reduces the requirement to inform parties in a fair and timely manner.
We object to the fact that the NPA does not recognize the Crown’s duty to consult. The revised enactment must acknowledge Indigenous rights and must explicitly stipulate the duty to consult and accommodate the First Nations.
√ Public interest. This ill-defined term which, among other things, does not explicitly refer to the rights and interests of Indigenous peoples, comes up often in the NPA. This concept confers on the Minister and to the Governor in Council decision-making powers whose objectivity cannot be easily measured. In addition to the concerns already expressed in this brief, this vague and elastic concept, which is widely used in federal legislation, and the fact that the vast majority of the water bodies and waterways in Canada and in our Nitassinans have been removed from the Schedule to the NPA, making the issue at hand even more tendentious in our opinion.
7. Modernization of the Act
The following is a list of the major changes our First Nations would like to see introduced during the review of the Navigation Protection Act.
Page 9 of 11
Review of Environmental and Regulatory Processes 3. Navigation Protection Act
√ Explicit recognition of our rights. As long as Indigenous peoples have to fight for the recognition of their Indigenous rights and titles and the resulting constitutional rights, these Indigenous rights and titles must be explicitly recognized in the revised federal enactment so that the NPA protects these rights and titles on all navigable waters in Canada.
√ Consultation. Pursuant to the preceding point, the Navigation Protection Act must contain provisions specifying the constitutional duty to consult with Indigenous peoples prior to implementing any project that may affect navigation on a body of water or waterway in Canada.
√ Change the name of the Act to better reflect the environmental objectives underlying the enactment.
√ Scheduled lakes and rivers. Even though the right to use navigable waters as a highway is protected in Canada by common law,9 irrespective of whether the navigable water is scheduled, the NPA review exercise must give priority to:
o amending the Schedule to include all the rivers and lakes of importance to Canadians and, in particular, to the Essipit Innu First Nation and the Nutashkuan Innu First Nation (Ashuapmushuan, Péribonka, Mistassini, Escoumins, Portneuf, Moisie, Romaine, Natashquan, Mécantina, etc.), and
o implementing a formal statutory process that would require consultation of the Indigenous peoples whose rights and interested—including the right to free passage over navigable waters—are affected by the effects of a proposed project on a body of water or waterway.
We call for a return, if not to the letter, at least to the spirit of the NWPA, even if it means identifying more sophisticated criteria than the “canoe test,” whose administrative and environmental effectiveness is debatable and inefficient.
√ Impact assessment. As we clearly pointed out in section 1.2 and in our briefs on the review of the Environmental Assessment Act and the Fisheries Act, based on our experience with the Canadian Environmental Assessment Agency and everything to do with assessing the impacts of projects in terrestrial and aquatic environments on a given area and, in particular on our Nitassinans, these projects must be subjected to the environmental assessment process set out in the current Environmental Assessment Act and any revised version, which can only improve the assessment process. We ask the TRAN committee to consider the analysis and recommendations contained in our brief on this matter, particularly as regards integrating traditional indigenous knowledge, applying a genuine ecosystem analysis, and implementing collaborative EA planning when both the federal and Quebec governments are involved.
o Conflicting uses. In the event of conflicting uses that unduly restrict our right to traditional practices for food subsistence purposes, the Act must recognize that the First
9 Which requires having to go to court after damages occur.
Page 10 of 11
Review of Environmental and Regulatory Processes 3. Navigation Protection Act
Nations have use and access priorities pursuant to recognized rights and related jurisprudence.
8. Conclusion and recommendations
The recognition of Indigenous rights, particularly with respect to the protection of navigable waters and access to navigation on the bodies of water and waterways in Canada and in our Nitassinans, is one of our primary concerns in this review of the Navigation Protection Act.
This and other concerns caused by the changes to the Navigable Waters Protection Act in 2012— changes that the government implemented without respecting its duty to consult—could certainly be mitigated if this duty to consult indigenous peoples were explicitly incorporated in a future enactment.
One of the worst changes introduced in the NPA was the significantly shortened list of scheduled bodies of water and waterways. Reinstating a list similar to the list in the NWPA, based on a realistic selection and criteria, and established in consultation with the First Nations, is one of the changes we are proposing to legislators.
The revised legislation should limit the discretionary power of the Minister and the Governor in Council to authorize the dewatering of navigable waters or to exempt works from prohibitions set out in the legislation without an actual EA that complies with the spirit and letter of the Environmental Assessment Act.
These four paragraphs effectively summarize our understanding of the issues raised by the Review of the Protection of Navigation Act: 1. Recognition of Indigenous rights; 2. Duty to consult; 3. Return to a list or realistic selection criteria for identifying navigable waters; 4. Reduction of the discretionary powers of the Minister and the Government.
Page 11 of 11