Canadian Lawyer

OPINION Back Page By Jim Middlemiss Stop the idling 50 April 2013 www.CANADIAN ble waters, and a third on sawmill effluent. Like any law that���s more than 130 years old, the courts have ruled on it. A case law search shows 92 cases where the NWPA is cited, including 16 from the SCC. The first SCC case in 1910 involved William Samuel Cunard, a British shipping magnate whose waterfront land was expropriated to build the Intercolonial Railway. In 1919, the court was asked to rule about the responsibility for removing a wrecked ship. Much of the early case law dealt with the scope of the act and its application to provincial law involving issues such as ownership of riverbeds. In fact, until 1990, court cases were few and far between. However, following Oldman River ��� which saw provinces, native bands, and environmental groups intervene in dam construction on Alberta���s Oldman River ��� the NWPA was suddenly raised in dozens of cases touching on the environment, and there is the rub. The NWPA is not environmental legislation; it deals with navigation. However, those opposing the Conservative government���s attempt to update the law paint the NWPA as some great protector of mother earth. Green Party leader Elizabeth May called the changes ���a real threat for thousands of our pristine waterways.��� Yet, testimony on the amendments at a Commons committee clearly shows rivers and lakes are not being abandoned. There are adequate environmental protections in place ��� federal laws like the Canadian Environmental Assessment Act or the Species at Risk Act, not to men- L a w ye r m a g . c o m tion approval processes before organizations such as the National Energy Board. There are also provincial and municipal laws and agencies that protect water and the environment. How much bureaucratic protection do we need and can we afford? Testimony from the Saskatchewan Association of Rural Municipalities points out burdens of the ancient law. One municipality proposed putting in new culverts at a cost of $125,000 to taxpayers. However, Transport Canada advised the culverts didn���t meet minimum clearance requirements for navigation and ordered it to install a $400,000 system, even though the municipality could show the water was blocked by beaver dams, rocks, and brush, and no one living in the area could recall a canoe attempting to traverse it. SARM says the NWPA creates ���unnecessary obstacles that are preventing municipalities in Saskatchewan from building cost-effective transportation infrastructure.��� I say enough idling, it is time to update old laws that create red tape and prevent reasonable and affordable progress. The list of rivers and lakes covered by the law provides clarity and the common law still provides navigation protections to waters that fall outside the act. The top federal bureaucrat responsible for the NWPA, Nathan Gorall, testified that ���boaters and builders have been operating in shared waterways for centuries . . . and they will be long after these amendments are changed by another set of amendments.��� Don���t be fooled by the Idle No More movement and the environmental lobby. They still have plenty of environmental protections and legislative tools at their fingertips to attack projects they deem improper. They just won���t have this dusty old law to call on anymore in their stalling tactics to prevent development ��� and that���s not a bad thing. Jim Middlemiss blogs about the legal profession at WebNewsManagement.com. You can follow him on Twitter��@JimMiddlemiss. Scott Page A t the centre of recent aboriginal protests lies a little-known, dusty piece of legislation called the Navigable Waters Protection Act, which dates back to 1882, before the transcontinental railway was built. Like most things from the 1800s, the NWPA is out of date and has outlived its usefulness. In omnibus budget legislation, the federal government is amending the law and plans to call it the Navigation Protection Act. The proposals will reduce red tape and allow municipalities greater latitude when improving local infrastructure, such as bridges with culverts. One problem is the NWPA (which was amended in 2009 to much less fanfare) doesn���t define navigable river. Currently, it includes any body of water that can float a canoe, including farmer���s ditches or brooks that run only in the spring. Work on such bodies of water triggers a review by Transport Canada. The federal government is bringing sanity to the situation by declaring a schedule of 97 lakes and 62 rivers covered by the new NWPA. Others can be added by regulation if needed. Provinces do not object to the list. However, The Idle No More movement and the environmental lobby complain the government is gutting Canada���s supposedly oldest environmental law. So what is the NWPA all about? According to the government web site its ���main purpose was to make legal the construction of works such as bridges and docks in waterways that might otherwise violate the common law right of navigation.��� It���s really one of Canada���s first transportation laws. The canoe was part of the country���s economic fabric and an important mode of transport. Today, the canoe is primarily a form of recreation. According to the Supreme Court of Canada in 1992���s Friends of the Oldman River Society v. Canada, the NWPA was grounded in three laws, one dealing with bridges over navigable waters, another involving removal of wrecks from naviga-

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