Canada’s Court of Appeal “liked” The Navigable Waters Act

Sorry, in these FaceBook dominated times, I couldn’t resist this corny title 😉

In 1992 a federal Court of Appeal presided over by eight judges including Canada’s Chief Justice at the time, Antonio Lamer, concluded that the Navigable Waters Act was about more than boats and cottagers’ docks. The case I’m referring to was Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3. The Court of Appeal, in its judgement against the building of a dam on Alberta’s Oldman River, ruled that, though the prime purpose of the Navigable Waters Act was to protect navigation, complaints brought before it usually were about things (like bridges and dams) that might interfere with navigation. So the Court’s role was to consider whether other advantages of a project might be important enough to justify interference with navigation. Included among things to be considered, the Court ruled, was the effect of a project on the environment.

Quoting from the Court’s 1992 ruling:

As I mentioned earlier in these reasons, the Act (the Navigable Waters Act) has a more expansive environmental dimension,

given the common law context in which it was enacted. The common law proscribed obstructions that interfered with the paramount right of public navigation. Several of the “works” referred to in the Act do not in any way improve navigation. Bridges do not assist navigation, nor do many dams. Thus, in deciding whether a work of that nature is to be permitted, the Minister would almost surely have to weigh the advantages and disadvantages resulting from the interference with navigation.

It is clear then that these judges considered the Navigable Waters Act as legislation that protected navigation first, but also would be useful in protecting the environment.

Under this old act, all projects that might interfere with navigation required notifying the federal government. By doing away with the old act and eliminating millions of waterways from its jurisdiction, Harper has made it easy for corporations and individuals to start construction projects without getting prior approval. The Navigable Waters Act, by requiring prior approval, had a prophylactic, preventative role in protecting navigation and, among other things, the environment.

The above was pretty dry and philosophical stuff, I admit. For a well-thought-out article in which the eminently genuine and first-hand opinions of those who actually depend on waterways for their food, I recommend this Vancouver Observer article.

One quote from the article:

Major changes to the act—now called the Navigation Protection Act — mean developers looking to build on and around lakes and rivers no longer have to notify the federal government of their plans.

As a result, future projects won’t trigger a federal environmental assessment, which First Nations say undermines their right to free, prior and informed consent for construction in traditional territories.

and this quote includes within it the words of Annita McPhee, head of the Tahltan First Nation council:

The change in the act’s title reflects the government’s move to separate the navigation rights that belong to all Canadians from the protection the waterways themselves. But Annita McPhee, head of the Tahltan First Nation council, sees it as a direct attack on the environment. The Tahltan scored an important victory in December, convincing Shell Canada to withdraw from the Sacred Headwaters of the Skeena, Nass and Stikine rivers.

Now, only one of those salmon rivers, the Skeena, is protected.

“It’s a direct attempt to undermine the protection of those lakes and waters and to allow access for developers,” she said. “This is affecting First Nations, but it’s affecting everybody. How can we all not be affected by this?”

By releasing private companies from the duty to notify the federal government when undertaking infrastructure projects, the new act in turn takes away the federal government’s duty to consult with First Nations before approving new projects such as the Enbridge Northern Gateway Pipeline.

Bills C-45, C-38 and a host of others brought in by Stephen Harper’s government are, make no mistake, designed to declare “open season’ on Native Peoples, Canada’s natural heritage and, folks, all of us – unless you own some prime real estate like a waterfront retreat on say, for example, Lake Muskoka.

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