Navigation Protection Act - Cases Upholding Public Right of Navigation

Backgrounder

The Supreme Court of Canada discussed the public right of navigation in Wood v. Esson (1884) 9 SCR 239. In Wood, the plaintiff brought an action in trespass against the defendant who had pulled up piles and removed a wharf belonging to the plaintiff. The defendant argued that the plaintiff's wharf was an obstruction interfering with the defendant's right of navigation. The Court agreed with defendant, upholding his right to remove the wharf. The Court held that without legislative authority the public cannot be deprived of the right to use navigable waters.
The Wood decision was later cited with approval in the Friends of the Oldman River Society v. Canada, [1992] 1 SCR 3 which dealt with a water management project and the applicability of a federal environmental assessment requirement. There, the Court discussed the public right of navigation and examined the legislative history leading up to the introduction of the Navigable Waters Protection Act (NWPA). The Court recognized that Parliament, through the NWPA, has authorized the Minister of Transport to approve construction of works that would otherwise be a public nuisance in navigable waters for interfering with the public right of navigation, and concluded that the Crown in right of a province is bound by the NWPA in the same way as though it were a private party since the NWPA is the only practicable mechanism for obtaining approval.
In Stephens v. MacMillan [1954] 2 DLR 135 the plaintiffs' aircraft was nearly destroyed while landing on Stoney Lake when it hit electric wires erected by the defendants between their island in the lake and the mainland. The Court held that the wires over the waters constituted a public nuisance as they obstructed passage, interfering with the public right of navigation as no boat over 30ft could safely pass over the waters in question. The defendants were ordered to pay damages to the plaintiffs.

October 2012

Search for related information by keyword

Transport Canada Transport

Page details

2016-12-14

We have archived this page and will not be updating it.

We have archived this page and will not be updating it.

Navigation Protection Act - Cases Upholding Public Right of Navigation

Backgrounder

Page details