The Drivable Roadways Protection Act: A Fable

The semantic shift says it all. The new law doesn’t protect drivable highways. It protects driving

Consider the following (fictional) scenario, and see if it gets your dander up: The government of Canada is making fundamental changes to the way individuals can drive in this country.

Currently, Canadian drivers have the right to drive on any public freeway, highway, secondary highway, gravel road, dirt road, lane, alley, interchange, parking lot, ramp—indeed, any public route that can be driven on, is yours to drive upon.

This is not just a privilege; it’s a right; one that’s enshrined in a law called the Drivable Roadways Protection Act.

The law protects our drivable roadways from arbitrary interventions by landowners, agriculture, industry and other interests who might interfere, willfully or incidentally, with our driving rights by constructing works that impede on our drivable roadways.

For example, a farmer who owns land on both sides of a secondary highway may not put a fence across, or a bridge over, or a tunnel under, or a ditch through that highway, for his own purposes, without first proving that it won’t obstruct the flow of traffic. Likewise, an oil company can’t put a pipeline over the road, and a waste treatment facility can’t run a sewage outflow through it without first proving no harm to drivabilty.

It’s a sensible law. Imagine if anyone, anytime, could, by right of bordering on a roadway, build anything at any time into the roadway, or over the roadway?

(Incidentally, the law functions as a safeguard against environmental damage that might potentially occur due to works impinging on the roadways.)

The onus is not on drivers to prove they need to access a given road, or that a given road can be driven, or is driven frequently or otherwise. Roads are roads. They’re ours for the driving. That’s what the Drivable Highways Protection Act is all about. It’s right there in the name.

The trouble is, the law is being changed. Tucked into an omnibus budget bill with a bunch of unrelated issues, is a provision that would change the law in name and in focus. Goodbye, Drivable Roadways Protection Act. Hello, Driving Protection Act.

The semantic shift says it all. The new law doesn’t protect drivable highways. It protects driving. And at that, it protects driving the government deems crucial, only on a few dozen major roadways and highways. The vast majority of Canada’s secondary highways, streets, and dirt roads are no longer protected by the precautionary principle, whereby anyone seeking to impinge on the roadway would have to prove no harm to drivability before proceeding.

Under the new law, nobody can build a bridge across Highway 401 without permission, but the smaller highway to your cottage is no longer protected as it was under the Drivable Roadways Protection Act. Watch for low bridges and deep ditches.

With the demise of the Drivable Roadways Protection Act, the individual driver’s inalienable and ancient right to access this country’s vast network of roadways is compromised, in favour of the rights of industry, agriculture, and other stakeholders to make such works as they deem necessary, regardless of how the potential impact on drivable roadways and our use of them.

It’s a creepy scenario, worthy of an dystopian novel, or a sci-fi movie played out in a crazy mirror world in which everything we believe has been turned upside down.

It’s also—but for two words—a real scenario. Replace Drivable Roadways with Navigable Waterways. The Navigable Waterways Protection Act becomes the Navigation Protection Act and you move from the realm of Orwellian fiction, to contemporary Canadian fact.

From time immemorial, the fundamental units of transportation in this land have been, not automobiles, but watercraft. The ancient transportation network by which Canada developed was not comprised of roadways, but of waterways: rivers, streams, creeks, brooks, lakes, ponds, marshes, swamps, and oceans included. Historically, individual Canadian transportation was by canoe, not by car.

Long before there were roads, these navigable waterways gave every individual in this land his or her access to the land, to hunt, fish, trap, trade and travel. The First Nations had vast trade networks based on navigable waterways. When the European settlers came, they mapped their new provinces and possessions directly onto those existing trade routes.

Along the navigable waterways of what is now Canada, where First Nations had always met to trade, both French and English in their turn built their towns and trading posts, from coast to coast. Among them are many of today’s modern Canadian towns and cities.

It’s is no exaggeration to say that all of this was done first by canoe. And this simple, iconic watercraft, long the symbol of Canada, remains vitally important to the debate around the changes to the Navigable Waters Protection Act. Canoes are to this real situation as cars were to our fictional scenario.

Canoeists are concerned that the changes to the law will mean their access to smaller waterways may be compromised, and that’s an important issue in itself. But the symbolic weight of the canoe in this debate even greater.

At the heart of the matter is the fact that the measure of a waterway’s navigability is, in fact whether it will support a canoe. If a waterway is capable of supporting a canoe or a kayak, it is considered navigable. After all, until recent decades, navigating by canoe was the most basic and essential form of navigation in this land, just the way cars are today.

Back to the changes to the Navigable Waters Protection Act. Navigable waterways, even through private property, are public, just the way public roads separating parcels of private property are. That’s a right that goes back thousands of years in both European, and First Nations traditions.

Minus provisions that would prevent industry, agriculture and other interests from interfering with navigable waterways arbitrarily, the Navigation Protection Act no longer offers explicit protection of your right to access any waterway that will float a canoe.

Just like our fictional law that protected big freeways, but not secondary highways, the real Navigation Protection Act applies to a small number of big important waterways, but not to the tens of thousands of lakes and streams and rivers that connect this country. A map of those few dozen waterways explicitly mentioned in the new act actually illustrates the vast network of waterways no longer protected. Pretty much everything, in fact. And that includes thousands of lakes and rivers a lot bigger than your local brook.

Does this matter to you, if you don’t canoe (or row, or kayak, or sail, or motor)? Aside from the potential loss of an important level of environmental protection, consider this: just as we are all potential drivers, we are all potential canoeists. Think about how you might react to a threat to your right to drive.

We all have the inalienable right to navigate on Canada’s navigable waterways, unimpeded, with the full protection of the law. For Canadians this is both historic, and defining. Maybe you don’t want to paddle a canoe up your local creek. But do you want to lose any degree of protection of your right to do so?

A right not used is soon lost. Time to get out there and paddle, Canadians, while we still can.