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In our last post we gave an overview of the recent changes to Canadian environmental law that will significantly impact Aboriginal and Indigenous rights in this country. This post focuses on the changes to two key pieces of legislation – the Fisheries Act and the Navigable Waters Protection Act.

Long before environmental law was a hot-button issue in Canada, the Fisheries Act prohibited the “harmful alteration, disruption or destruction” of fish habitat without a permit. Although the Minister of Fisheries and Oceans could allow any alteration, disruption or destruction of a fish habitat, the Act enabled the government to prevent and prosecute harmful works and undertakings in fish habitat, thereby protecting aquatic ecosystems.

That protection has now been narrowed substantially. The Fisheries Act has been amended to prohibit only “serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery”, with “serious harm” being defined as “death of fish or any permanent alteration to, or destruction of, fish habitat”. It is no longer an offence to “disrupt” fish habitat, such as by interrupting spawning patterns, or to cause temporary but significant changes or damage to fish habitat.

The Navigable Waters Protection Act has been renamed the Navigation Protection Act and now offers greater protections, but to far fewer waterways. The amendments to this Act enhance the enforcement procedures and the available sanctions for violations. The amendments also close some loopholes, such as the ability to get around the Act merely by de-watering a stream.

On the other hand, the new Navigation Protection Act only applies to 100 lakes and coastal areas and 63 major rivers, out of the millions of water bodies that exist in Canada. The Navigable Waters Protection Act covered any water that was “navigable” – meaning that a small craft, such as a canoe, could travel through it – which brought many more water bodies under the Act’s protection

The changes to the Navigable Waters Protection Act are important for Aboriginal peoples because they leave millions of water bodies essentially unregulated. When it comes to water bodies covered by the Act, any proposed development that will impact navigable waters requires authorization and automatically triggers a federal environmental assessment, which means that Aboriginal peoples will have a role to play in determining whether the project will be allowed. However, with the majority of navigable waters removed from the purview of the Act, there is no government involvement in most development projects, and therefore nothing to trigger the duty to consult.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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