This piece is a guest blog by author, explorer, and trail builder Hap Wilson as part of our series weaving together the cultural, environmental, and historic significance of Canada’s navigable waters.
It is the duty of the federal government to protect the public right of all Canadians to navigate waterways in a fair and transparent manner. This sole authority over navigation is granted under Section 91(10) of the Canadian Constitution.
One hundred years ago, the Privy Council established the “floating canoe” test for navigability -this protected the public's right to navigate any waterway that could literally float a canoe. This definition included not only known navigable waters, but the future use of ‘potential’ waterways.
In 2012, this was all flushed down the toilet in order to placate the avaricious demands of corporate interests. Yet, we were getting it all wrong even before those century-old rules were cut-down behind closed doors.
There are a few important items that you may have missed in last weeks 341 page environmental omnibus Bill C-69. To date, the majority of the public coverage on the Bill has been around environmental assessment and energy regulation. But anyone who is a recreational water enthusiast or concerned about environmental flows, has an interest in the third part of the act that amends navigation protection (which protects waterways from obstructions). Here we’ve broken down some of the big changes.
Tip for readers: Our analysis of this Bill and all its implications is ongoing and we will post our analysis as well as key asks in the weeks and months ahead as we track this Bill in Ottawa through the House of Commons. For a snapshot, check out the TL;DR (too long; didn’t read).
Why amendments must go beyond restoring what was lost
The 2012 amendments to the Navigable Waters Protections Act (NWPA) stripped protections from 99% of waters by eliminating environmental assessment requirements and narrowing federal government oversight to an exclusive list or Schedule under the Navigation Protection Act (NPA). This meant that approvals for projects on scheduled waters would not trigger a look at environmental impacts. By reducing federal oversight to a short-list of waters on the schedule the vast majority of our lakes and rivers lost regulatory protection. For the majority of waters, the public right to navigation was left to the public to defend in court.
A look at proposed amendments
1. New definition for navigable waters
The proposed Canadian Navigable Waters Act (CNWA) adds clarity to decision making with a definition for navigable waters. Though the definition (pictured below) extend protections beyond the schedule to provide federal oversight for large developments on publicly accessible waterways, it is narrower than the canoe test.
By John Ralston Saul
This piece was originally published August 25, 2017 in the Globe and Mail. Walls, Bridges, Homes is a series of essays written in response to the emerging global appetite for a progressive narrative around inclusion and immigration. The series frames the thematic focus on 6 Degrees Citizen Space (Sept. 25-27), a forum presented by the Institute for Canadian Citizenship. 6DegreesTO.com
We have included this piece in our blog series for the way in which it weaves together the cultural and historic significance of rivers and the concept of rivers as bridges for building better relationships among all peoples.
We seem to be desperate today to build bridges or to blow them up. The wall or no-wall argument, the barbed-wire fences now cutting up Europe are just new versions of the old idea that wherever water flows, people can be separated.
Wars are still fought from riverbank to riverbank, as they have been for thousands of years. People still glower at or cower from each other across these theoretically uncrossable divides. Borders still follow rivers or mountains or ocean coasts, unless they were drawn in straight lines on a map by rival imperial officials – lines designed to show not their belief in diversity, but their indifference to complexity in colonial lands.
We have this odd idea that borders are natural divisions – an idea fixed in our imaginations because so much of modern Europe was built on that myth. War after war after war leading from the Westphalian treaties in 1648 to the modern Westphalian nation-states. One way or another, these wars were aimed at creating what I call the monolithic model. Wars, rivers and mountains or arbitrarily drawn lines shaping nations which claim to house a single people. And the only way you can get to that notion of a single people is by pretending that they are made up of a single race, a monolithic religious belief system and total agreement on a shared mythology.
We’ve been speaking with government officials and MPs about restoring protections to navigable waters. Groups, and individuals, across the country are uniting in calling on the federal government to deliver on its promise. The time to get environmental laws right and #fixNPA is now.
In November, the Canadian Freshwater Alliance, along with environmental organizations from across the country, went to Parliament Hill to call for environmental law reforms. To see our recommendations, take a look at our collective briefing note. We met with cabinet ministers, Senators, officials, and MPs and bureaucrats in Ottawa about the Fisheries Act, the National Energy Board Act, the Canadian Environmental Assessment Act, Canadian Environmental Protection Act (CEPA) and the Navigation Protection Act. But, the work is not over!
This is a once-in-a-lifetime opportunity to draft a new vision for environmental protection in Canada. Now is the time to call on government to make substantive changes to environmental laws, and to bring back lost protections. Before the bills are introduced, our leaders need to know that we expect lost protections for Canada’s navigable waters to be restored.
Join us Thursday, December 14th at 12pm ET for an online conversation on steps you can take, like meeting with your local Member of Parliament, to help ensure we get the strongest laws for Canada’s waters. You can RSVP here.
Canadians like you are filling gaps in navigable water protections by submitting nominations of rivers and lakes, and by calling on the federal government to restore protections for all waters.
Access to millions of rivers and lakes rests on how the Navigation Protection Act is revised. Now is the time to nominate your home waters to join ALL navigable waters for protection from barriers that block navigation. You can join a movement calling on the Navigation Protection Act to ensure #nowatersleftbehind
People are raising alarm to protect an ecological and economically vital stretch of the Fraser River from developments that threaten critical sturgeon spawning habitat and that change water flows. A recent study of faulty floodgates on the Fraser shows how blocked water flows contributed to poor water quality and less native fish. Though the Navigation Protection Act (NPA) concerns human navigation, it is clear that structures that impede navigability also impact environmental health.
The good news is that the Fraser River falls within the protections of the Navigation Protection Act (NPA) so barriers to navigation (such as faulty flood-gates) could be challenged under the Act. But millions of waterways lack the immediate protection that being listed in the Act provides. Many may have small communities with little resources to individually challenge harmful developments in court - the only option for those not listed under the NPA. Is this fair? With no government oversight for the cumulative impact of countless developments on unscheduled waterways, like pipelines to tailing ponds, the responsibility has shifted to the public to protect these navigable waterways.
Canada is a country woven together by the the lakes and rivers that span the land from coast-to-coast-to-coast. These waters were the original highways, their flows tied to treaty obligations, their waters providing us with space to swim, paddle and fish. Without a doubt the waterways across the country form a key pillar for community, economic, and physical health.