Home News/Updates Ecojustice Memorandum: Proposed amendments to the Navigable Waters Protection Act and the erosion of public navigation rights on Canadian waterways
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Ecojustice Memorandum: Proposed amendments to the Navigable Waters Protection Act and the erosion of public navigation rights on Canadian waterways
Proposed amendments to the Navigable Waters Protection Act and the erosion of public navigation rights on Canadian waterways

Date: February 9, 2009
Author: Will Amos, Staff Lawyer, uOttawa-Ecojustice Environmental Law Clinic, with research assistance from Yolanda Saito and Sam Sonshine

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SUMMARY:
The Budget Implementation Act, 20091, an omnibus bill tabled by the Conservative Government on Friday, February 6, 2009, proposes a radical transformation of the regime that protects the navigability of Canada’s rivers and streams. The proposed amendments to the Navigable Waters Protection Act2 (NWPA) would create a “tiered” or “class system” for Canadian navigable waterways, granting the Government a discretionary authority to identify waterways deemed worthy and unworthy of federal protection. Those waterways that are declassified would not be subject to the existing NWPA requirement that all works impacting navigable waters undergo an approval process. This approval process, which includes public notification and which triggers a federal environmental assessment, is at the core of the federal government’s clear constitutional jurisdiction over navigation and pursuant to s. 91(10) of the Constitution
Act, 1867. The amendments are intended to limit the applicability of the Act and hasten the approval process for works that interfere with the right of navigation. In the opinion of the author, these changes are an unnecessary form of deregulation that would undermine the government’s public trust duty to protect Canadians’ right to navigate waterways in a fair and transparent manner.

These proposed NWPA amendments will:
  • Limit navigation rights by impacting the long-standing right to navigate and enjoy free access to Canada’s waterways;
  • Deregulate the protection of navigable waterways by significantly narrowing the classes of waterways protected under the Act, and by granting both the Cabinet and the Transport Minister unfettered discretion to further exempt certain “classes of works” and “classes of waterways” from the approvals process under the Act;
  • Reduce transparency and accountability by eliminating the need for public notification and consultation on all projects that the Government determines not to “substantially” interfere with navigation.