What is a 'navigable waterway'?

Peter Gorrie wrote an article in Sunday’s Toronto Star criticizing the Harper government for rolling back “key” environmental protections by sneaking them into the budget bill.

I need to be about as circumspect as possible when writing about this issue, because for over five years I worked in an office dedicated largely to completing environmental assessments relating to the legislation Gorrie discusses in his article: the Navigable Waters Protection Act. Chances are I’ll end up working there again. So you’ll have to pardon me for being a bit opaque.

The Navigable Waters Protection Act is one of Canada’s oldest pieces of legislation and was passed when Canadians still got around largely by canoe; in that era, the public right of navigation on waterways was uncontested. If someone put up a bridge that you couldn’t navigate under and you couldn’t get your kids to school or your logs to market, that was serious. Now we have sidewalks, trains, subways, paved roads–how many people do you know who commute to work by canoe? The law has essentially not been touched since.

But a few years ago a judge ruled that a navigable waterway included any waterway you could float a canoe in any section during even part of the year. That drainage ditch that floods during the snow melt to a level deep enough that you could theoretically float a canoe on it for 50 feet or so during April? It’s now a navigable waterway. A river with a waterfall at one end and a non-navigable rapids twenty-five metres away that is theoretically navigable in between? Counts as a navigable waterway. Sure, you’d have to dunk your canoe in underneath the waterfall and drag it out of the river again in five minutes–but no matter.

Since a permit under the NWPA is a trigger for an environmental assessment under the Canadian Environmental Assessment Act,anything crossing a drainage ditch is potentially subject to environmental assessment.

Here’s the Canadian Environmental Assessment Agency’s EA Registry. A search shows 97 active EAs within Ontario alone of bridges and culverts triggered by the NWPA. In most cases, the implementation of best practices for bridge and culvert construction and repair will mitigate environmental impacts for these projects. 

The definition of a “navigable waterway” absolutely needs to be changed.

Now, the method for doing so in this case is not the best, I agree. A budget does not seem the proper vehicle, and they did not consult as broadly as they could have. The potential for abuse through the use of ministerial orders definitely exists. But no, I do not believe that this was done as a broad-based assault on the public right of navigation–only as a way of undoing the absurd effects of a ruling which has hampered the proper application of this legislation for far too long.

6 thoughts on “What is a 'navigable waterway'?”

  1. I appreciate your position, but wholeheartedly disagree. This piece of legislation has been developed independently of input from recreational paddlers, and other members of the outdoor and environmental communities. This legislation will provide free reign for unscrupulous developers who see natural waterways as an impediment to unchecked sprawl – not to mention questionable micro hydro projects that harm fish stocks and irrepably change our natural landscape. What you may consider un-navigable is eminently paddalable for others. I do not dispute that an update to the legislation may be in order, but the manner in which it is being done is unconscionable.

  2. Hi, Wendy. Thanks for your comment. We agree, I think, that an update needed to happen although the method may have been less than fabulous.
    I’ve read everything I can find from the government on this and I’ve yet to see anything that says *all* waterways currently considered navigable would be open to development. What I have seen states that waterways would be tiered: they would be considered more or less navigable depending on their characteristics, which makes very good sense to me. Yes, the potential for abuse exists, I agree; but let’s not forget that much of Canada’s tourism industry depends on nice, scenic, navigable waterways, and I very much doubt that the Canadian government is going to give away all of those lovely tax dollars by allowing unscrupulous developers to do whatever they like with them. (Come to think of it, most developers would probably stand to make more money from their developments if they preserved the navigability characteristics of the waterways in the areas they are developing.)
    I think whether the criteria for developing this class system are intelligent or not remains to be seen, and we’ll all find out soon enough.
    As far as micro hydro goes, no energy source is free of impacts and micro hydro certainly has less harmful effects than most of our current energy does (i.e. coal, nuclear). I’m not saying this means we should slap them up everywhere, but neither can we sacrifice energy needs to recreational interests in all instances. Sometimes? Yes. Always? No.

  3. I get around by canoe and kayak quite a bit, and teach others how to do it, too.

    1. In the U.S. as a result of laxity in protecting the right to navigation, we have rivers where, despite the tourism value, one needs to stop a journey, travel around an area of non-public land by truck, and then put in again. By non-public I mean all that has to happen is that you or your company owns land on both sides of the waterway, and then you have the right to control it. Fences across rivers (a lethal hazard to boaters and wildlife alike) are quite common.
    We already have trouble with landowners in Canada who do this sort of thing, but the NWPA has been one of the few recourses we have to keep waterways open for the public to enjoy.

    2. After 9 years of paddling off my local neighborhood beach without incident, I was today warned off and prevented from paddling under a footbridge/wharf connecting a private yacht facility to the shore. In order to continue to travel along the shore I was required to paddle out and around the facility in high waves, quite an exposed detour for a small boat. The operator claimed they controlled both the land on shore and also the land under the water all around their marina and had the right to restrict boat traffic to their membership, despite never having enforced such a rule before. Is this the sort of thing repealing the NWPA gets us?

    3. Micro hydro: don’t confuse this for what is “called” (sold as) micro hydro. You’ll be told one can’t make an omelette without breaking some eggs or other such tripe, but I have to point out that here in BC we now have hundreds of new dams, reservoirs (yes, reservoirs), fences, powerlines and access roads cut through forest, all sold as “green power” and/or “micro-hydro”. This is FAR from green. Best of sector? How would you like your daughter taken out by the best and kindest serial killer? Sorry for the metaphor, but that’s how the tired argument works: if we don’t want nuclear or coal, we have to build dams. Umm. how about conserving some of the vast amounts of electric power we waste every year first, before trashing the rivers?

    Think hard about what this means for all of our access and movement on the waterways of the country. This is a potentially serious erosion of the commons.

    1. Hi Erik. Thanks for stopping by.

      The NWPA is not being repealed. It is being modified. I haven’t yet seen anything that convinces me that the proposed changes will “gut” the legislation. Most of the opposition in fact seems to be based on erroneous assumptions about how the NWPA works. And no, none of the proposed changes I’ve seen change the ownership or right-of-control aspects.

      Looking at the proposed changes, and after having completed EAs for these projects for many years, it’s quite apparent that the vast majority of NWPA approval projects will continue to be assessed; and in fact when speaking to my former colleagues, they tell me the same thing. Furthermore, an EA under the Act is not the same thing as an NWPA approval; they are separate processes.

      Electricity generation is not serial murder; we need the former, we don’t need the latter, and somehow or other, those coal and nuclear plants need to be *replaced,* which won’t happen through conservation and efficiency alone. There are many forms of renewable energy, and each has a role to play, including hydro. I’m sure it can be done poorly (just as I’m sure it can be done well) but that doesn’t invalidate it as a method of electricity generation.

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