Canoeists blocked on the "navigable" Peace River

Council of Canadians supporter Marilyn Belak (right) and Ken and Arlene Boon (left-to-right) at a camp at Rocky Mountain Fort on the Peace River opposing the Site C dam, January 25, 2016.

Waterways in Canada were once legally considered navigable if a canoe could float in them.

In 2012, the Harper government gutted the Navigable Waters Protection Act - literally taking the word "water" out of the title of the legislation - and the Trudeau government has not yet taken substantive action to reverse that damage.

In a letter to the editor published in the Vancouver Sun this past December, Mike Kroecher writes, "Five canoes left Bear Flats on a Site C protest paddle to Taylor on the morning of Sept. 17. At the Rocky Mountain Fort site, we came ashore for lunch. Within minutes, we were confronted by some RCMP members. The senior officer, a sergeant, stated that we were in violation of a B.C. Supreme Court injunction, as we had entered a restricted area. He then curtly stated that we had five minutes to be gone or we would be arrested. After a somewhat heated but civil exchange between the sergeant and myself, the sergeant stated: 'End of conversation.'"

Kroecher continues, "We paddled a kilometre downstream when again the police appeared on shore. At this point, we were handed copies of the injunction and told we were still in the restricted area and had to leave. We pointed out however, that according to the map we were 'outside' of the restriction. The police responded: 'The map is wrong.' The map was not wrong, but the police definitely were. It appears that our group was targeted by the RCMP. We met several campers on Eagle Island, which is within the “restricted” area. They had not been asked to leave by the Mounties."

And he concludes, "The RCMP appear to have misconstrued our peaceful and legal paddle for something else. Did they feel the need to teach us a lesson? As paddlers, we were legally outside of the restricted zone on the second landing site. Yet we were still threatened with arrest. This experience left all of us with serious doubts about our own legal rights and freedoms."

Under the former Navigable Waters Protection Act, a waterway was considered "navigable" if a vessel such as a canoe was able to float across it. The legislation, first passed in 1882, eventually covered the impact of bridges, booms, dams, causeways, wharves, docks, piers and other structures. In 1906, the Supreme Court of Canada adopted the "floating canoe" threshold holding that any water that was navigable and floatable was within its scope. By 2002, the Navigable Waters Protection Act was described as a "federal statute designed to protect the public’s right to navigation and marine safety in the navigable waters of Canada."

When the Harper government gutted the Act - removing pipelines and hydro-transmission lines from its scope - and reducing the number of rivers federally protected to just 62 in the country (essentially delisting 2.25 million rivers that had previously been covered by the Act).

The Peace River (from Williston Lake to Slave Lake) is still listed under the Navigation Protection Act, but the Trudeau government issued Navigation Protection Act permits in August 2016 allowing construction on the Site C dam to proceed (despite court challenges against the dam contending it is a violation of the United Nations Declaration on the Rights of Indigenous Peoples).

The House of Commons Committee on Transport, Infrastructure and Communities will submit its recommendations on the Navigation Protection Act to the Minister of Transport very soon and the minister is expected to comment on those recommendations later this year. The Council of Canadians has called for a full and immediate restoration of federal protection for all 2.25 million rivers and 31,000 lakes, plus enhanced protections including implementing strict safeguards for waterways within the framework of the UN-recognized human right to water.

For our commentary on this issue, please click here.

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