Many of Canada’s laws are derived from Common Law, including the public right of navigation. The common law protects the right of navigation by treating things placed in water that interfere with navigation as obstructions that can be removed or abated if they cause damage or become a public nuisance. The right of the public to transit all navigable waters is paramount and therefore protected under Canadian law.
Under proposed amendments to the Navigable Waters Protection Act, only those waterways listed will be actively regulated by Transport Canada. All other waterways will remain protected under the common law. Generally, most of the builders who regularly operate in and around waterways understand the need to accommodate navigation.
To assist builders in constructing works, Transport Canada will provide guidelines such as Navigation Impact Assessment tools that will assist with building works in such a way that they do not infringe on the common law right of navigation.
The proposed amendments will include provisions to make it possible for a builder of a work in an unlisted waterway to opt in, in which case the work would be subject to the Act. This means that the project would be provided some protection from a court challenge under the common law, and it would be subject to Transport Canada’s compliance monitoring and enforcement regime.
If a waterway user has concerns about a new or existing work in an unlisted waterway, it is anticipated that most of these issues will be resolved among neighbours. In the unlikely event that navigation is interfered with, the issue could be heard in a superior court where a ruling would decide whether the public right of navigation has been infringed.
October 2012
