19 Oct Navigable waters may be litigable waters if Bill C-45 passes
As has been widely reported, the second omnibus budget bill has been tabled in Parliament (Bill C-45). Part of the Bill is aimed at amending the Navigable Waters Protection Act (NWPA) to focus its regulatory application on impacts on prescribed navigable waters (listed in a schedule of the Act) as opposed to all navigable waters. The NWPA has been viewed as having significant environmental value due to the fact that it preserves the intactness of our water ways by preserving navigation rights.
The Government has been cited as saying that the narrowed scope in Bill-45 should not be of concern as the non-scheduled water ways are protected by other federal and provincial laws. This however raises an interesting legal question: Can provinces authorize impacts to navigable waters? Navigation is part of the federal jurisdiction under the Canadian Constitution (at s.91(10)).
So, what happens when you have a public right that is curtailed by a government with an apparent yearning to shirk its Constitutional powers? Litigation appears likely and here’s why.
A right to have navigable waters remain navigable has been noted as a public right in case law. Justice La Forest in Friends of the Oldman River Society v. Canada (Minister of Transport), (1992 CanLII 110 (SCC),  1 SCR 3) notes,
The common law of England has long been that the public has a right to navigate in tidal waters, but though non-tidal waters may be navigable in fact the public has no right to navigate in them, subject to certain exceptions not material here. Except in the Atlantic provinces, where different considerations may well apply, in Canada the distinction between tidal and non-tidal waters was abandoned long ago; see In Re Provincial Fisheries (1896), 26 S.C.R. 444; for a summary of the cases, see my book on Water Law in Canada (1973), at pp. 178-80. Instead the rule is that if waters are navigable in fact, whether or not the waters are tidal or non-tidal, the public right of navigation exists. That is the case in Alberta where the Appellate Division of the Supreme Court, applying the North-West Territories Act, R.S.C. 1886, c. 50, rightly held in Flewelling v. Johnston (1921), 59 D.L.R. 419, that the English rule was not suitable to the conditions of the province.
La Forest goes on to note that the passage of the Navigable Waters Protection Act permits the interference with the public right of navigation, thereby making a public nuisance lawful. It is further noted of the “public right of navigation — that it can only be modified or extinguished by an authorizing statute, and as such a Crown grant of land of itself does not and cannot confer a right to interfere with navigation; see also The Queen v. Fisher (1891), 2 Ex. C.R. 365; In Re Provincial Fisheries, supra, at p. 549, per Girouard J.; and Reference re Waters and Water-Powers,  S.C.R. 200.”
On its face it would appear that only the federal government has the Constitutional authority to create a “public nuisance” by interfering with this public right. As Professor Hogg notes in Constitutional Law of Canada (5th Edition Supplemented, at 30-12) “provinces may not authorize the obstruction of navigable rivers” (citing Queddy River Driving Boom Co. v Davidson (1883) 10 S.C.R. 222). Provinces and activity proponents may be faced with litigation if they attempt to hinder navigation rights on those lakes and rivers which are effectively shoved aside if Bill C-45 passes. Indeed, if (a big if) litigation is successful and injunctive remedies are granted by a court, the navigable waters excluded by Bill C-45 may find themselves more “protected” than those that are the focus of the proposed legislation.
Legal arguments around this may revolve around s. 3 of the Bill, which states:
It is prohibited to construct, place, alter, repair, rebuild, remove or decommission a work in, on, over, under, through or across any navigable water that is listed in the schedule except in accordance with this Act or any other federal Act.
Does this section, by implication, mean that activities that impact non-scheduled waters don’t require a permit? If the notion of a public right of navigation is upheld it could be argued that the navigable waters that do not appear in the schedule are still governed by a common law right. The creation of a lawful public nuisance would require specific statutory language.
(This issue may also be why there is an “opt in” provision at s.4 of the Bill, which invites the application of the Act to any navigable water).