Born with a Grey Beard: Canada's Navigable Waters Protection Act
Presented at the 6th Canadian River Heritage Conference Ottawa, Ontario June 15, 2009
Introduction
The simple act of dipping oneʼs paddle into the water and pulling, propelling oneself forward - such is an act that defines “Canada.”
We use the word “navigation” because we have no other word, at least not in English, that captures the full meaning of the action. To “navigate” is to be constantly moving, coming from somewhere and moving towards somewhere else. “Navigation” is an act of faith that there will be some place waiting for you when you arrive. It is the gift of living near places of wealth and of being blessed with routes by which you may travel between them.
Navigation is not a recreational pursuit. It is not an economic pursuit. It is the act of converting the gifts of oneʼs physical surroundings into pleasure, freedom, wealth, or survival. Navigation is an act of citizenship.
For two thousand years, to navigate water 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.
The Institutes of Roman Law published in 160 AD legitimize the importance of rivers, navigation, and public access.1 The Enactments of Justinian, Book II, published in the early 6th Century AD formally stated that running water belongs to all people and guaranteed access to waterways, fishing and ports:
- By natural law the following things belong to all men, namely: air, running water, the sea, and for this reason the shores of the sea. No one, therefore, is prohibited from approaching the seashore if he avoids damaging houses, monuments, and other structures …
- All rivers and ports are also public, and therefore the right of fishing in a harbor or in streams is common to all.
- The shore of the sea extends to the point attained by the highest tide in winter.
- The public use of the banks of rivers is also subject to the Law of Nations, just as the use of the river itself is; and hence anyone has a right to secure a vessel to them, to fasten ropes to trees growing there, or to deposit any cargo thereon, just as he has to navigate the river itself; but the ownership of the same is in those whose lands are adjacent, and therefore the trees growing there belong to them. The public use of the sea-shore is also subject to the Law of Nations in like manner as that of the sea itself, and therefore any person has as good a right to build a house there in which he can take refuge, as he has to dry his nets or to draw them out of the sea. The ownership of the shores, must, however, be considered as belonging to no one, but to be subject to the same law as the sea itself and the earth or sand underneath it.
This Roman code became the foundation for legal systems that evolved around the world, including the French Code of Napolean and the English common law.
Seven hundred years later, on June 15, 1215, another landmark document was created at Runnymede, England. Tired of King Johnʼs “extortionate exploitation of his feudal rights and his ruthless administration of justice”, the English aristocracy forced him to execute a document known as Magna Carta or “The Great Charter”. Magna Carta (re)affirmed ancient liberties and customs by water and guaranteed the free passage of merchants and man via waterways in accordance with “ancient and lawful customs”. It also pledged the removal of all fish-weirs, in order to facilitate navigation. While most of Magna Cartaʼs clauses have long since been repealed, the document itself set limits on royal authority that remain important to this day. Magna Carta formalized the idea that the king was subject to the law, not above it:
...the real legacy of Magna Carta as a whole is that it limited the king's authority by establishing the crucial principle that the law was a power in its own right to which the king was subject.
When Europeans came to North America, they brought with them the legal traditions and customs embodied in Magna Carta and the Enactments of Justinian. They were complemented by First Nationsʼ laws and traditions established here, on this continent. As the Assembly of First Nations notes, the right to navigation is also one of the longest standing rights in First Nationsʼ laws:
In First Nationsʼ laws, water is understood as the basis for life and social organization. Maintaining social organization includes maintaining navigational mobility … First Nations identify rivers as the landʼs arteries. As such, they are, and always have been, essential to the ongoing survival and well-being of First Nations. Rights to water and unobstructed waterways are essential to sustaining life and society and are a prerequisite to the enjoyment of virtually every other Aboriginal and Treaty right.
This right flows from pre-confederation customs, as well as treaties between First Nations and European settlers, the Constitution, and jurisprudence. The Assembly of First Nations explains:
First Nationsʼ rights to water stem from Aboriginal rights and from the Pre- confederation, numbered and modern Treaties. All aboriginal title lands (including reserves) carry paramount rights to the use of water feeding and bordering the lands. Aboriginal Rights are based on First Nationsʼ traditional use and occupancy of land and include rights to land, water, resources, culture, language, a livelihood and self-government. The treaties provide additional clarity on specific rights. Hunting, fishing, harvesting and trapping rights are included in the treaties. One specific example is in Treaties 5 and 7, where settlers are granted free navigation of lakes and rivers and use of shorelines in the First Nationsʼ waterways, thus granting priority rights to First Nations over settlers.
With the complementary protections offered by European and First Nations legal traditions, it is clear that the right to navigate has always been part of the fabric of Canadian history.
It has been roughly 500 years since European and First Nations customs met, 800 years since Magna Carta and 2,000 years since Roman Times; yet, notions of navigation, access to waterways, checks on power, and the rights of all people are still relevant. Collectively, they are the foundation of Canadaʼs legal system. They influence both legislators and justice officials to this day. For this reason, we cannot discuss issues such as navigation without understanding the history of thought, achievement, and struggle that came before us.
Yet that is precisely what occurred within Canadaʼs federal government between February 2008 and June 2009. One of the countryʼs oldest laws, the Navigable Waters Protection Act,13 was deconstructed and re-written in a manner that demonstrated profound ignorance of our nationʼs history and culture. The consequences may forever alter our waterways and our national discourse.
This paper examines the process by which the Navigable Waters Protection Act was amended, the reasons and trends behind the changes, and some of the flaws with the process. The paper suggests that fanciful notions of “navigation” and “rights” still matter in todayʼs Canada. It describes how our collective respect and understanding for the act of navigation has crumbled and how, in our hurry to “modernize” our laws, our Parliamentarians have laid the groundwork for two-tier justice and the unnecessary surrender of wealth.
The paper describes how, unless we make wiser decisions going forward, Canadians will have ceased to dip our paddles into the water, pulling towards a place worth being.
