Are Canadian waterways subject to public rights?

Are Canadian waterways subject to public rights?

By Laura Bowman

The Navigable Waters Protection Act (NWPA) has existed since 1882 and is one of the oldest pieces of legislation in Canada.  Public common law rights to navigate water bodies have existed for over a thousand years, and have been adopted into Canadian common law.  The NWPA provides a process for interfering with public law rights to navigation.  In Canada a water body is “navigable” if it can be traversed by a small boat or vessel such as a canoe or if it can be used to float logs.

Projects that could interfere with navigation, such as bridges and dredging, have historically been required to prepare an environmental assessment under the Canadian Environmental Assessment Act.  The role of the NWPA as a “trigger” for environmental assessments has made it a significant piece of environmental legislation for many years.

The NWPA was amended in February with the Budget Implementation Act, 2009 and a Ministerial Order released in May 2009.  As a result of these changes, “minor works” projects and projects in “minor waters” no longer need environmental assessments or approvals.

The intention of these changes is to refocus navigation approvals towards projects that are more likely to impact navigation activities.  It also moves away from using the NWPA to regulate a wide range of environmentally significant activities in a large number of Canadian waterways.

Navigation in public waterways is of course of great significance to Canada’s history and culture as it played a key role in the expansion of the fur trade across what was to become Canada.  Navigation and access to waterways was of importance to Canada’s early forestry operations, and continues to be a significant issue for recreational use of public waterways and some shipping.

Of course, the NWPA looms large in Alberta’s environmental narrative and Canadian environmental law as it was an approval under this Act that the seminal Supreme Court of Canada (SCC) case in Oldman River considered.  The SCC’s confirmation of federal authority over navigation in Alberta waterways in that case has been incredibly influential.

In Alberta, the creation of a category of works and classes of waters that are not subject to approval may have ramifications in the energy sector.  New classes of minor works included in the May 2009 Ministerial Order will include some power lines and pipelines, water intakes, and dredging.  Projects in small creeks, “private” lakes and rivers, or narrow sections of larger waterways will no longer be subject to the same level of review, public participation and scrutiny as they were previously.  This may leave projects that have historically had federal environmental assessments without significant opportunities for public participation.

These changes represent much more than simply regulatory “streamlining.” They represent a different philosophical approach in Canadian law, one that asserts that some waterways are “minor” and that these “minor” waterways are no longer truly public waterways.  The ancient public right of navigation has been one of the few areas in Canada where a true recognition of “public trust” – or responsibility to protect public use – of natural resources has existed.  In the United States, the public trust doctrine holds that certain natural resources belong to everyone and must be managed in the broader common public interest.  Many major players in the environmental movement in Canada have sought to see the public trust aspect of environmental and natural resource regulation expanded north of the border.

Changes to the NWPA appear to represent a rejection of the concept of public rights to natural resources.  These changes also reflect a view of water resources and navigation that is highly compartmentalized.  The distinction between minor waters and other navigable waters ignores the hydrological interrelationship between tributaries and major water bodies on a watershed level.  What is perhaps more striking is that a rejection of public resource rights to navigation is a rejection not only of certain environmental values, but also of more deeply rooted public values that predate the environmental movement, and even constitutional democracy.

The creation of minor waters and the “private lakes” exception in the NWPA Ministerial Order may discourage recreational public access to small aquatic areas.  Lakes surrounded by private land must prevent public access to maintain this exemption.  In Alberta, the beds of such lakes, if natural and permanent, belong to the province under the Water Act.  It may well be the case that these public lands become increasingly difficult to access for enforcement, recreation and research.

Whatever the proper role of the NWPA in environmental regulation, there is no question that these amendments represent a major shift in how the federal government thinks about public rights in Canada’s waterways.

Comments on these changes can be submitted to government until December 31, 2009.

More information on the NWPA ministerial order and how to submit comments is here.

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11 Comments
  • Mark David Loney
    Posted at 11:45h, 16 March Reply

    A Ontario government entity iis in the process of erecting a fence that will deny access to a navigable waterway. I use this waterway to walk to work in the winter.. The only other access involves crossing private land. Do I have any rights that would allow me to keep my accesss to this navigable waterway over public property?

  • Navigable waters protection update | Environmental Law Center
    Posted at 18:00h, 14 November Reply

    […] we posted about the Ministerial Order under the federal Navigable Waters Protection Act – (“Are Canadian Waterways Subject to Public Rights”) Where we noted that this seemed to be a step away from treating all waterways equally in Alberta and […]

  • Jim Beaty
    Posted at 15:50h, 11 August Reply

    I would exercise my common law right to navigation and remove the barbed wire fence as a pubic nuisance. What’s the problem?

    • Adam Driedzic
      Posted at 08:09h, 06 October Reply

      In Jim’s barbed wire fence example there would be arguments on both sides as outlined in Jason’s May 30th 3014 post. The federal government has jurisdiction to alter the public right to navigation through legislation. However, the goal of the legislative changes is not to restrict public rights to navigation. It’s to avoid avoiding environmental assessments and permit requirements for projects in water bodies. The changes from 2011-2014 has increasingly moved towards listing specific waters rather maintaining the common law baseline. The initial changes listed waters that were exempted from environmental assessments and the more recent ones only require permits for projects in listed waters.

      “Public nuisance” is a different issue and a semantic mess: Private citizens don’t have common law rights to enforce against public nuisances unless they suffered unique or different harm from the general public or their private rights were infringed at the same time. Removing the fence would be more of a vigilante act whether or not the public right to navigation exists.

  • Jason Unger
    Posted at 08:54h, 02 June Reply

    one final follow up to Zeppelin’s inquiry is the “minor works and water” order which is referred to in Laura’s blog. The works and waters that were exempt from operation of the approval requirement of the Act (applied to works and water bodies between June 7, 2009 and April 1, 2014 (when the new amendments took effect) depends on a variety of characteristics. Transport Canada (the Ministry responsible for the Act) published a “Minor Water Users Guide” document to describe application of the order and can be viewed here http://www.tc.gc.ca/publications/en/tp14838/pdf/hr/tp14838e.pdf .

  • Jason Unger
    Posted at 15:34h, 30 May Reply

    Important follow up Zeppelin is that, the obstruction was likely illegal as at the time of the construction it would have been governed under the previous Act (i.w. the Navigable Waters Protection Act) – assuming it has been there for some time. (I meant to mention this in my previous post as it is very relevant.)

  • Jason Unger
    Posted at 11:00h, 30 May Reply

    Hi Zeppelin, following amendments to the Navigable Waters Protection Act (to become the Navigation Protection Act) the focus of law has become on water bodies listed in the Schedule to the Act (which can be viewed http://laws-lois.justice.gc.ca/eng/acts/N-22/page-19.html#docCont ) . Unfortunately this means that the government will only be involved where the water body is found in the schedule…with most water bodies not being included.

    The person who created the obstruction may argue that because the water body is not in the schedule that all obstructions are permitted. Countering this argument would require going to court and asserting a historic right to navigation and claiming that the obstruction of that navigation wasn’t expressly allowed by the new act so the court should grant an injunction related to the obstruction (ordering its removal). (The outcome of such a case is an open question).

  • zeppelin71
    Posted at 20:53h, 28 May Reply

    We like to canoe down a creek in our RM (Saskatoon area), but a farmer recently installed a formidable barb wired fence across it. Did he have the right to do that?

  • Adam Driedzic
    Posted at 16:04h, 05 March Reply

    Hi Don, Camping depends on who owns the land. Camping on public land depends on what statute and regulations apply. Camping on private land requires consent of the landowner In most cases camping is more like a privilege than a right.The public rights concern navigation of the watercourse.

    Check out the Paddle Alberta site for maps, camping and trip routes: http://www.paddlealberta.org/paddling/paddling_database.asp

  • Don
    Posted at 22:46h, 02 March Reply

    Can a person camp on the side of a river for a canoe trip

  • Jason Unger
    Posted at 15:02h, 16 December Reply

    Bringing the “public trust” doctrine to Canada has been tried several times with little success? Should someone consider it in relation to the NWPA Order?

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