On Wednesday, November 30, 2016, Lake Ontario Waterkeeper submitted comments to the Government of Canada on changes made to the Navigation Protection Act (formerly, "Navigable Waters Protection Act") – one of Canada’s oldest laws. Until 2009, the law remained substantially unchanged, when sweeping changes to the legislation eliminated protections for the majority of navigable waters in Canada and focused the law on specific acts of navigation on waters of interest to the federal government. Waterkeeper was the only environmental organization to participate in the committee review prior to the 2009 changes, and again in 2012. Here are Waterkeeper's recommendations for the Standing Committee on Transport, Infrastructure and Communities’ consideration.

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SUBMISSION FROM
LAKE ONTARIO WATERKEEPER/
SWIM DRINK FISH CANADA
IN THE MATTER OF:
Navigation Protection Review
SUBMITTED TO:
Standing Committee on Transport, Infrastructure and
Communities
℅ Andrew Bartholomew Chaplin
Clerk of the Committee
Via email: TRAN@parl.gc.ca
FOR MORE INFORMATION, PLEASE CONTACT:
Krystyn Tully
Vice President
krystyn@waterkeeper.ca

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(416) 861-1237
November 30, 2016
BACKGROUND
The Navigation Protection Act, formerly the Navigable Waters Protection Act, is one of
Canada’s oldest laws. Passed in 1882, its specific purpose was to ensure that works
were not constructed that would interfere with navigation without scrutiny from the
federal government. It reflects an ancient right to navigate found in both European and
indigenous traditions.
The law remained substantially unchanged until 2009, when sweeping changes to the
legislation eliminated protections for the majority of navigable waters in Canada and
focused the law on specific acts of navigation on waters of interest to the federal
government.
Lake Ontario Waterkeeper was the only environmental organization to participate in the
committee review prior to the 2009 changes, which shows that the government made
little effort to engage the public in the process. We participated again in committee
hearings held at the time of the 2012 amendments, further narrowed the Act’s
application. Again, these hearings were very limited in scope and very few voices were
heard. At no time during either process did we feel as though the federal government
heard or respected our expert submissions. Further, promises made by the
government to improve the process and transparency going forward were repeatedly
broken.
Given our history on this issue, it is disappointing that our organization was not
contacted as part of this review process. We are concerned that we are just one of
many people and organizations with an interest in this matter who have not been
adequately consulted. Of all of the changes to environmental legislation in 2012, public
concern around changes to navigation protections were arguably the highest. Some
wise and informed presentations were made to the committee this month, but even
those who had an opportunity to present to the committee would likely welcome

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additional consultation on this matter. As Mr. Kyle Vermette of the Métis National
Council noted, committee hearings alone should not be considered “true consultation.”
Métis, Aboriginal, and non-commercial voices must all be heard to resolve ongoing
concerns about access and use of Canadian waters.
We are concerned, also, by the general tone of these committee hearings. Too much
time was spent debating whether or not the committee review should happen. Too little
time has been spent understanding the importance of navigation to culture, identity,
and way of life for people living in Canada. The failings of this process are particularly
apparent when contrasted against the more thorough reviews of fisheries and
environmental assessment laws.
For these reasons, we ask the Minister of Transport launch a new review of the
status of navigation in Canada, led by the department rather than the committee,
and with deliberate, national engagement and consultation.
Recommendation #1: Transport Canada should conduct its own review and
ensure there is thorough, national consultation.
What follows is our additional commentary, for the Committee’s consideration.
COMMENTARY
Rollbacksto Navigable Waters Protection Act protectionsstarted in
2009
In 2009, the Government of Canada made sweeping changes to the Navigable Waters
Protection Act. The significance of those changes is documented in detail in the
attached paper, “Born with a Grey Beard”.
When studying changes that could be made to improve the legislation and protect the
public’s right to navigate, the baseline should be the Act circa 2008. By 2012, the
Navigable Waters Protection Act was already a shadow of its former self. Relations

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with the public were already poor. Trust in the government consultation process was
already shattered.
We recognize that the attachment from 2009 is a lengthy document, but to our
knowledge, it serves as the best available testament to the importance of navigation
rights and traditions in Canada. If you wonder why the 2009 and 2012 changes upset
so many people, this paper provides context. It also provides context for
understanding why the consultation and review process in 2016 and 2017 must be
improved.
Navigationis a right
Recommendation #2: Restore protections for navigation on all waterbodies
by default.
For thousands of years, navigating a waterbody has been considered an act of human
freedom. The ability to move from place to place and to access waterways free from
tyrants, dictators, monarchs, and other powers has been one of the most important
hallmarks of a just society.
Navigation protections and traditions were common in Aboriginal and European
societies alike and long precede the Navigable Waters Protection Act. This is why the
Act is said to have been “born with a grey beard”.
As noted in Committee hearings recently, the federal law existed so that the
Government of Canada could help protect navigation rights. It did so by requiring
approval from the federal government before building or doing something that would
interfere with navigation on the water. The approvals process created an opportunity
for people affected by a project to make themselves known and for conflicts to be
resolved.
Today, the Act only protects navigation on specific waters. Even then, it gives
government weaker powers than before to reject or regulate projects. It rarely triggers
public notice or consultation.

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Unless all navigable waters are protected, “navigation” becomes a privilege reserved
for a select people with select interests in select communities.
The Navigation Protect Act must protect all typesof navigationon
water
Recommendation #3: Protect all types of navigation on water; do not
prioritize certain communities or sectors over others.
One of the most frustrating arguments made by supporters of the changes is that the
Act should only protect certain types of navigation (i.e., commercial) and that it should
be easier for certain sectors to undertake projects that interfere with navigation (i.e.,
urban development, energy development). In many ways, this creates more clarity and
protection for proponents of activities that interfere with navigation than it does for
people seeking to protect their right to navigate.
This undervalues the importance of navigation to many communities. Is a paid river
guide leading a canoe trip not also engaged in “commercial” activity? How is a
recreational route used by tourists who bring money into a community recognized for
its contributions to the economy? When access to water improves quality of life in a
community, attracts businesses, and creates jobs in a region, how is that access
protected? Who is looking out for these people and these uses?
These activities are essential activities in Canadian life. According to the 2012
Canadian Nature Survey, 40% of Canadians participate in non-motorized water
activities each year (swimming, paddling); another 21% participate in motorized water
activities. Further, canoeing and kayaking are ranked two of the most popular activities
at secondary properties in Canada (e.g., cottages), suggesting that access to navigable
waters has an important impact on property values and property uses. As both the
Survey and the OFAH have noted, these activities contribute $14-$15-billion per year
to the Canadian economy. Even if the activities are perceived as being “leisure” or less
important than commercial activities, they are still important contributors to the
economy.

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Prior to 2009, the Act recognized this. By protecting all navigable waters for all uses, it
made it possible for diverse activities to contribute to the cultural and economic health
of a community. The Act was written in a way that protected navigation opportunities,
promoted consultation, and made innovation and growth possible. Post 2009, the Act
operates as though government can and should pre-determine every possible use of
every waterbody, in every community, and keep lists of places and activities deemed
valuable. This is impossible, and it cannot protect waterways, navigation, or a way of
life.
The Navigation Protect Act must protect all navigable waters
Prior to 2009, the Act regulated activities that would interfere with all “navigable water”,
defined in practice as any body of water where navigation could occur. As the Minister
noted, “the original notion was any waterway that you could put a canoe in.”
Changes made in 2009 and 2012 claim to protect navigation, rather than navigable
waters - as if protecting the act without protecting the waterbody is even possible. It
was part of series of changes to federal law that promised to protect activities while
eliminating protections for the places where those activities would take place (e.g., the
Fisheries Act, which no longer protects fish habitat).
Proponents of the changes argue that Canadians may ask to have waters they value
added to the list of protected waters. This is a preposterous approach to federal law-
making that puts the burden on the public to do government’s job.
Protecting waters by default does not mean that no projects can ever interfere with
navigation. It does mean that the purpose of the law is restored and that government is
once again responsible and accountable for protecting navigation rights.
Common law enforcement is not a viable alternative

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Proponents of the changes in 2012 argued that the right to navigate still exists, but is
now left to civil courts to resolve conflicts. This is a poor solution to administrative
concerns about regulatory burden. It means that the public only has recourse after
harm has occurred. It limits protections to the desperate or privileged few who are able
to bring civil suits. In effect, it amounts to no true protection at all.
There are better ways to address administrative concerns
Recommendation #4: Once protections are restored, find administrative -
not legislative - ways to ensure a transparent and efficient regulatory
process, including providing appropriate staffing and funding.
In 2009, regulatory burden was said to be the reason for amending the Act. Too many
approvals applications were taking up too many government resources and legitimate
investments in development and business were being delayed, proponents claimed.
Earlier this month, the Committee heard that the reduced number of applications has
reduced demand for government resources. This does not necessarily mean that the
changes to the Act are “working”. There are many, many ways to make the regulatory
process efficient without sacrificing people’s rights. From the hearings in 2008, it was
clear that those administrative options were not being explored.
Contemporaneousrollbacksto environmental assessment rules made
a bad situationworse
Recommendation #5: Restore public participation in decision-making.
It is impossible to fully understand the consequences of changes to the Act without
considering changes made simultaneously to the Canadian Environmental Assessment
Act.
The Act itself did not trigger public consultation. The request for an approval under the
Act triggered the environmental assessment process because of wording in the CEAA
and its related regulations. Because of CEAA protections, the public had an

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opportunity to learn about, comment on, and improve activities that interfered with
navigation.
Proponents of the changes, particularly in 2009, repeatedly stated that rollbacks to this
Act would not be a problem because “other” environmental legislation and the CEAA
would protect waters and ensure public participation in decision-making. When CEAA,
the Fisheries Act, and other federal laws were rewritten in 2012, these assurances were
rendered meaningless.
Proponents also argue that provinces can provide equal protection. This assertion
ignores the Canadian Constitution, which explicitly states that navigation is a federal
responsibility. It also mistakenly implies that provincial environmental assessment
processes are identical to the former federal process; in most cases, they do not apply
to the same projects or proponents, are not triggered by the same activities, and
cannot be considered equivalent when it comes to protecting navigation rights.
To fix the issues with the current Act, problems with the CEAA must also be
addressed.
This consultationprocesshas been insufficient
As noted above, this consultation process has not been commensurate with the
importance of navigation issues to the public. The Committee review is not “pointless”,
as one member suggested. But it is also not enough to provide the Minister of
Transport with the information and perspective needed to resolve the issue. There is
still far too much emphasis on streamlining the bureaucratic process for the ease of the
department and far too little - arguably no - exploration of the importance of navigation
to people. This topic is worthy of government attention.
The attached paper describes just some of the problems that flowed from lack of
consultation in 2009. Concerns and mistrust remain to this day, possibly more deep-
seated than those associated with any other legal rollback in recent memory.
We fully expect that, through consultation with the larger public, the federal
government will come to understand how deeply-rooted navigation is in our national

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and indigenous culture and how much navigation contributes to all aspects of the
economy and daily life. Navigation is not a partisan issue, and we truly believe that a
robust consultation process could be invaluable for everyone involved.
RECOMMENDATIONS
In light of the above commentary, Lake Ontario Waterkeeper submits the following
recommendations:
Recommendation #1: Transport Canada should conduct its own review and
ensure there is thorough, national consultation.
Recommendation #2: Restore protections for navigation on all waterbodies by
default.
Recommendation #3: Protect all types of navigation on water; do not prioritize
certain communities or sectors over others.
Recommendation #4: Once protections are restored, find administrative - not
legislative - ways to ensure a transparent and efficient regulatory process,
including providing appropriate staffing and funding.
Recommendation #5: Restore public participation in decision-making.
APPENDIX A
Born with a Grey Beard