Navigable waters changes worry producers

Farmers and ranchers are concerned that federal Bill C-69 could open up public access to low-flow streams on their land

It’s a big legislative bill that could affect Canada’s ability to build pipelines, but Bill C-69 also has potential to affect farmers’ and ranchers’ use of waterways.

The bill, now being considered and likely amended by the Canadian Senate, includes proposed changes to the Canadian Navigable Waters Act.

Its imprecise wording has raised concern that normally low-flow streams and creeks could be deemed navigable during spring runoff or after heavy rain and thus subject landowners to different and more stringent regulations on water that flows through their property.

“We’re calling for clarity on wording,” said Larry Thomas, manager of environment and sustainability for the Canadian Cattlemen’s Association.

Members of the CCA environment committee discussed their issues with Transport Canada officials during the CCA’s annual meeting in Ottawa earlier this year. Those officials said the bill’s wording is not intended to interfere with existing use of waterways, but CCA members want clear wording to avoid future issues, said Thomas.

As an example, if a minor stream has high seasonal flow as it passes through privately owned land onto public land, it could be deemed navigable under the bill’s current definition. Then anybody could access that waterway, including stretches on privately owned land.

Thomas said there are also potential issues with landowners wanting to install culverts or bridges on water that flows through their property. It is unclear, in the bill’s wording, whether they would have to inform neighbours and allow a comment period before proceeding with their plans.

The CCA is seeking exemptions for installations of minor works such as culverts and fences and a better list of works that are considered minor and major. That is important because minor works involve less regulation.

An April issue of the CCA’s Action News put it this way: “The CCA believes exemptions for agriculturally related activities and specific agricultural scenarios is the best solution to address producer concerns and ensure the act will not impede the ability of farms and ranches dependent on secure access to fresh surface water to protect and secure the environment of their working landscapes.”

Changes to the act affecting navigable waters would, according to the federal government:

  • Introduce protections and implement modern day safeguards for the public right of navigation on all navigable waters in Canada.
  • Advance reconciliation and establish new opportunities for Indigenous peoples to partner with Canada.
  • Create more accessible and transparent processes.
  • Provide robust powers to enforce new safeguards to protect the public right of navigation.

In an analysis of proposed new legislation, Max Collett of Norton Rose Fulbright Canada LLP provided definitions of navigable waters:

Navigable water means a body of water, including a canal or any other body of water created or altered as a result of the construction of any work, that is used or where there is a reasonable likelihood that it will be used by vessels, in full or in part, for any part of the year as a means of transport or travel for commercial or recreational purposes, or as a means of transport or travel for Indigenous peoples of Canada exercising rights recognized and affirmed by section 35 of the Constitution Act, 1982, and:

– there is public access, by land or by water;

– there is no such public access but there are two or more riparian owners; or

– Her Majesty in right of Canada or a province is the only riparian owner.

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