Back to top

Why navigation protection is also environmental protection

4 July, 2016

The Canadian government has announced that the House Standing Committee on Transportation will soon be starting its review of the Navigation Protection Act.

Unfortunately, Transport Minister Marc Garneau, in announcing the review, downplayed expectations that the government would restore lost environmental protections to a wide range of rivers and endorsed the previous government’s views that the purpose of the act is to protect navigation, and not navigable waters. That’s contrary to what the Liberal Party of Canada promised in the last election.

Canadians who were expecting better protection for the 99% of lakes and rivers that lost their legal protection in 2012 will want to let the government know their views.

The gutting of the Navigable Waters Protection Act

In 2012 the government’s Omnibus Bill C-45 replaced the Navigable Waters Protection Act (NWPA) with a Navigation Protection Act. Prior to C-45 dams, pipelines and other activities with the potential to impact navigation required an approval from the Transport Minister to do so. The Navigation Protection Act limits that requirement to a short list of large streams and rivers – less than 1% of Canada’s lakes and rivers. This change came hot on the heels of Bill C-38, which had already eliminated the requirement to conduct an environmental assessment of projects that required an approval under the NWPA.

The changes were a major factor in the rise of the Idle No More movement, but also were decried by the environmental movement (including West Coast), kayakers and recreational boaters, and others. The Liberal Party of Canada was also outraged; in the words of Kirsty Duncan, now the Minister of Science:

Through Bill C-45, our world-renowned natural heritage is being further imperiled by a government that fails to understand that water is the foundation of life and that it is essential for socio-economic systems and healthy ecosystems. … The Navigable Waters Protection Act of 1882, considered Canada's first environmental law, would be changed to the navigation protection act. The focus of the law would no longer be to protect navigable waters but, rather, to protect navigation.

Similarly, in the Liberal Party “Real Change” platform:

Stephen Harper’s … elimination of the Navigable Waters Protection Act [has] weakened environmental protections. We will review these changes, restore lost protections, and incorporate more modern safeguards.

However, in announcing the review, Transport Minister Garneau ducked questions as to whether protection should be restored to other waterways and adopted the previous government’s line that the Act should be limited to protecting navigation, on the “most used” navigable waters:

The Navigation Protection Act gives the Canadian government the mandate to overview everything that has an impact on navigation in the most used navigation channels. … In 2012 the Navigation Protection Act was amended to simplify the review process. … Our government has decided to examine those modifications and possibly re-establish some measures to protect navigations that were eliminated. …

Q: You have talked about the review of the Act regarding Navigation, but the Conservatives had changed the paradigm, because they moved from navigable waters to navigation. Are you going to come back to the old intention of the Act and of the law?

A: Well what we intend to do is to protect navigation, because this Act is one of the oldest of our country and it addresses navigation problems. …

Q: Are you going to increase the number of navigable watercourses?

A: The Act itself is one of the oldest acts in the country and in fact, as many people like to say, it initially addressed any water body that could hold a canoe, in fact. And, so, this is a law that was changed in 2012 by the previous government. Some of the changes that they made, we may end up saying that they’re reasonable. But some of them we definitely will change.

Fraser River, Sto:lo Territory, cc David Meurin 2016

Fraser River, Sto:lo Territory (Photo: David Meurin).

Navigation v. Navigable Waters

It is disturbing that the Minister and the previous government both agree that the purpose of the Navigation Protection Act is the protection of navigation and that’s it, thank you very much, definitely no environmental protection to be seen here. This view is oft-repeated as if it is self-evident, so I’d like to make the case that the former Navigable Waters Protection Act did, as Kirsty Duncan suggested, always have an environmental purpose and function.

The public right of navigation on rivers is not a creation of Parliament. It originates in the English common law and was modified by the Canadian courts to recognize the importance of watercourses to early Canadian settlers for a variety of purposes, from transportation and economy to fish and water. Thus in the 1866 case of AG v. Harrison, the Court of Chancery for Upper Canada held that the dumping of sawmill waste into a navigable river violated the public’s right to navigate, because “the rights of the public in navigable waters are [equivalent to] those of a riparian proprietor…” The court notes that those rights include:

a clear right to enjoy the river … in exactly the same condition in which it flowed formerly, so that cattle may drink of it without injury, and fish which were accustomed to frequent it may not be driven elsewhere.

Similarly, in the 1847 case of Watson v. Toronto Gas, Light and Water Co. it was held that the Toronto Gas, Light and Water Company, in discharging waste into navigable waters (the Bay of Toronto) was committing a public nuisance when, as a result, the water became unfit to make whisky (clearly a pressing environmental concern).

To this day the Navigation Protection Act, like the Navigable Waters Protection Act, does include a prohibition on dumping waste in navigable waters where doing so might “interfere with navigation.” The earlier cases suggest, however, that this prohibition could go yet further.

Once the Navigable Waters Protection Act was enacted, imposing federal regulation on dams, pipelines, transmission lines and other structures that could impact on the public right to navigate, it became inevitable that the Minister of Transportation would be called upon to consider environmental matters in applying the NWPA. In 1992, in the landmark Friends of the Oldman River case that paved the way for environmental assessment laws in Canada, the Supreme Court of Canada not only confirmed that that was appropriate, but noted that the federal government “likely … always did take into account the environmental impact” of projects in issuing or refusing to issue approvals under the NWPA.

At least partly as a result of that case, the Canadian Environmental Assessment Act was enacted in 1995, which required Transport Canada to consider environmental impacts in deciding whether or not to issue approvals under the NWPA.

All of which is presumably why Transport Canada’s own website said, until 2010, that the Navigable Waters Protection program was "responsible for the protection of the public right to navigation and the protection of the environment through the administration of the Navigable Waters Protection Act."

So when someone – be it a Conservative Cabinet Minister repealing the NWPA or a Liberal Cabinet Minister conducting a review – tells you that the Navigation Protection Act is, and can only be, about providing navigation on big rivers, give them a history lesson.

Little Slocan River, Sixnit Territory, cc Eric Parker 2014

Little Slocan River, Sixnit Territory (Photo: Eric Parker).

What we’re going to tell the Minister

Please consider participating in the government’s consultations on the Navigation Protection Act, whether now (through this survey) or when more formal consultations occur.  Here are some points that we plan to make:

  • The public right of navigation has always included the protection of navigable waters; the Act should protect navigable waters, and not only a narrow view of navigation.
  • All navigable rivers deserve legal protection, and not just the major ones. Indeed, the ones that are enjoyed by kayakers and canoers, hunters and fishers, are often the most vulnerable. One biologist reports being able to access isolated areas to do his fisheries research because he was able to insist on a right to navigate.
  • The government’s review of how to protect navigation can’t be entirely separate from your reviews of the Fisheries Act and of environmental assessments – these statutes must work together to protect Canada’s waterways.

 

By Andrew Gage, Staff Counsel