Home News/Updates Ecojustice Memorandum 2: The erosion of the public right to navigate on Canadian waterways by the proposed amendments to the Navigable Waters Protection Act
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Ecojustice Memorandum 2: The erosion of the public right to navigate on Canadian waterways by the proposed amendments to the Navigable Waters Protection Act
The erosion of the public right to navigate on Canadian waterways by the proposed
amendments to the Navigable Waters Protection Act

Date: February 19, 2009

Author: Will Amos, Staff Lawyer and Part-time Professor, uOttawa-Ecojustice
Environmental Law Clinic, with research assistance from Sam Sonshine, Yolanda Saito
and Ali Clarkson.

Download full document, memorandum_-_nwpa_amendments_-_ecojustice_2.pdf  bytes 31/12/1969, 19:00

EXECUTIVE SUMMARY
The proposed amendments to the Navigable Waters Protection Act (NWPA) threaten the longstanding public right to navigation, including the right to recreational navigation. If the Budget Implementation Act is passed by the Government of Canada, these changes will grant the Transport Minister an unprecedented discretion to define “classes” of projects on waterways that do not require government approval or environmental assessment (EA). Furthermore, this discretion would not be checked or balanced by any public consultation, transparent disclosure or Parliamentary review.

Although the Government invokes the language of “red tape” and “duplication” with provincial processes, the simple fact is that navigation is a purely federal responsibility under the Constitution. Even when projects trigger provincial EA processes, these do not specifically require that the public right to navigation be considered. In short, both navigation and environmental rights are being sacrificed for short-term economic gain. The result will be less federal protection for the rivers, creeks, lakes and seas where Canadians paddle, raft, fish and play.

The effects will be felt by recreational and outdoors communities, from participants to ecotourism businesses. Examples of potential effects include:
  • Sea kayaking: Aquaculture farms may be established without providing a safe and effective navigation channel, which could effective sever sea kayak routes.
  • Fishing: Rivers with the potential of being restored for the purpose of reintegrating fish and aquatic life may not receive protection under the proposed amendments.
  • River Paddling: Canoeists and kayakers may face increasing obstacles in their riverways such as culverts and small-scale hydroelectric dams. Seasonal and remote wilderness waterways may no longer be protected.
  • Whitewater kayaking: Important sites may be considered to be not navigable and thus not protected due to the high number of “obstacles” along the waterway.

Ecojustice recommends that the proposed amendments be withdrawn from the Budget Implementation Act. At the very least, it would only be appropriate for the proposed changes to be considered more fully by all relevant constituencies in the spring of 2009, when the federal government has announced that it will be presenting a bill to reform the Canadian Environmental Assessment Act.