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How navigable waters and environmental protection flow together

An environmental lawyer considers what is — and is not — part of the Navigable Waters Protection Act


 

Steven Fletcher, the minister of state for transport, couldn’t have been more emphatic earlier this week when he asserted in the House that the Navigable Waters Protection Act “has always been and remains about navigation and navigation only.” What the act isn’t about, and has never been about, Fletcher insisted, is “environmental protection.”

He was responding with exasperation to a question on Monday from the NDP’s Peggy Nash about why the government is amending the act in a way that means tens of thousands of lakes and rivers will no longer be covered by it. In Nash’s view, that means weakening environmental protection for those bodies of water. Fletcher suggested she just doesn’t get what the law is about.

Yet I seemed to recall the Navigable Waters Protection Act coming up in the context of environmental regulation over the years. So I called Dianne Saxe, a well-known Toronto environmental lawyer, to ask her about it. Saxe explained how the act, while not explicitly about environmental protection, has come to be closely connected with it.

Here’s perhaps the key point Saxe walked me through: four provisions in the Navigable Waters Protection Act automatically required an environmental assessment under the Canadian Environmental Assessment Act. Among them is the key federal power to approve building on navigable waters—structures like bridges, booms, dams and causeways. So approving or rejecting any of these sorts of projects required an environmental assessment under the CEAA regulations.

Or, at least, such assessments were required under the old CEAA. The Tories replaced that law earlier this year with a much-revised statute, which will mean fewer federal assessments in a more limited range of circumstances. But under the previous CEAA— passed in 1992 and in force until its repeal last summer—the Navigable Waters Protection Act was named in regulations as a law that triggered assessments. (You can search here for those regulations.) To claim then, as Fletcher did, that the act was only about navigation and never the environment, is, in Saxe’s words, “just wrong.”

This might all seem a bit technical—multiple acts and regulatory triggers and what not. In a landmark Supreme Court of Canada decision back in 1992, though, Justice Gérard La Forest made it all seem a straightforward matter of up-to-date common sense. Writing the Oldman River decision—and ruling that the environmental guidelines of the day should be applied to a dam-building decision made under the Navigable Waters Protection Act—La Forest observed: “Environmental impact assessment is, in its simplest form, a planning tool that is now generally regarded as an integral component of sound decision-making.”

That was 20 years ago. Look how far we’ve come since.


 

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