[1993] 1 F.C. 559
T-1354-92
International Minerals & Chemicals Corporation (Canada) Limited (Applicant)
v.
Minister of Transport (Respondent)
Indexed as: International Minerals & Chemicals Corp. (Canada) Ltd. v. Canada (Minister of Transport) (T.D.)
Trial Division, MacKay J.—Calgary, June 16; Ottawa, November 26, 1992.
Environment — Navigable waters — Application for declaration waters of Cutarm Creek navigable under Navigable Waters Protection Act — Applicant seeking to ensure environmental reviews completed before starting major mine project — Waters determined by Minister to be non-navigable — Mixed question of fact and law — Case law on navigable waters concerning rights of riparian owners — Background and purposes of Act discussed — Navigable waters implicitly including concept of aqueous highway — Waters must be navigable in fact, capable of carrying vessel — Requirement not met — No evidence of navigation by floating vessels using creek as highway for transportation or recreation — Proposed works not requiring Minister’s approval under Act.
Constitutional law — Distribution of powers — Provinces incapable of enacting legislation authorizing interference with navigation — Legislative authority of Parliament under Constitution Act, 1867, s. 91(10) in relation to public right of navigation, not waters — Minister of Transport having no regulatory duty or power under Navigable Waters Protection Act, s. 5 (2) in relation to works not interfering substantially with navigation — Proposed works not requiring Minister’s approval.
This was an application for a declaration, under section 18.1 of the Federal Court Act, that the waters of Cutarm Creek, a melt water stream in Saskatchewan, are “navigable waters” within the meaning of the Navigable Waters Protection Act. This application was made to ensure that all applicable environmental reviews were completed before the applicant (IMC) commenced work on a major mine project. Following a site investigation by Transport Canada, it was determined that the waters of Cutarm Creek at the site of the proposed works were non-navigable and that the Act was not applicable to the proposal. That being so, the Minister argued that there was no affirmative regulatory duty imposed on him in relation to the proposal and thus no responsibility to initiate an environmental review. The issue was whether the waters of Cutarm Creek are “navigable waters” within the meaning of the Navigable Waters Protection Act and whether IMC’s project was subject to the Minister’s approval under the Act.
Held, the application should be dismissed.
Since the Act itself does not fully define “navigable waters” to which it applies, the decision ultimately rests with the Court as a matter of statutory interpretation on the question of whether the Act applies to the waters of Cutarm Creek. This issue is a mixed question of fact and law, not simply a question of fact to be determined within the exercise of discretion by the Minister; it is a preliminary question upon which the Minister’s jurisdiction under the Act depends. The conclusion to be drawn from the affidavits and supporting exhibits of both parties was that during much of the year the creek was not capable of being navigated by boats, canoes or rafts for any great distance except for the reservoir held by the dam, constructed in connection with IMC’s existing mine sites. It was not navigable by craft in the locations of the two proposed conveyor system trestle crossings, because of obstructions by highway causeways, old roadbeds and the dam, all of which are the result of construction altering the natural state of the creek.
While there is considerable jurisprudence concerning “navigable waters”, much of it relates to the rights of riparian owners and none deals with the issue whether waters are navigable within the meaning of the Navigable Waters Protection Act. However, in a recent case Friends of the Oldman River Society v. Canada (Minister of Transport), the Supreme Court of Canada discussed the historic background and the purposes of the Act, stating that the right of navigation is paramount to the rights of the owner of the bed, even when the owner is the Crown and that the paramountcy of the public right of navigation can be modified or extinguished only by statute. The provinces are constitutionally incapable of enacting legislation authorizing an interference with navigation, since subsection 91(10) of the Constitution Act, 1867 gives Parliament exclusive jurisdiction to legislate respecting navigation. This legislative authority is not in relation to waters but to the public right of navigation; it concerns the regulation of the public right to travel or transport for trade, communication or recreation on waters capable of carrying vessels.
The underlying purpose of Part I of the Act is to protect navigation, the public right to use navigable waters as a highway for purposes that go beyond commercial uses. Navigable waters within the Act implicitly include the concept of an aqueous highway, which means that the waters must be navigable in fact, capable of carrying a vessel. Waters which in their natural state are navigable and thus subject to regulation under the Act continue to be so even though conditions change due to the forces of nature or the construction of works affecting navigation. On the other hand, a river, stream or creek that in its natural state is not navigable in fact does not become so by alteration of the natural state unless some portion of the waters then becomes capable of carrying vessels using the waters as an aqueous highway for travel or transport for trade, communication or recreation. In the instant case, there was no evidence that in the normally short season of high run-off, the creek has served as an aqueous highway or that it is likely to have reasonable appeal to the public to be used as a highway for navigation. It would extend the concept of “navigation” beyond that contemplated or warranted within Parliament’s powers under subsection 91(10) to include as “navigable waters” those creeks or streams that in their natural state throughout most of the year are not navigable in fact simply because, for limited periods of high water during spring run-off or following extraordinary precipitation, they are capable of carrying vessels of shallow draft.
The waters of Cutarm Creek, in their natural state, are not navigable waters within the meaning of the Act. There was no evidence of navigation by floating vessels using the waters of the creek in their natural state as a highway for transportation or recreation. Neither crossing, by trestles, included in the applicant’s project is at a location where the waters of Cutarm Creek are navigable for the purposes of the Navigable Waters Protection Act. Thus, they were not works requiring the approval of the Minister under that Act. If no affirmative regulatory duty was imposed by statute on the Minister, the latter had no responsibility or authority to initiate an environmental review under the Guidelines Order.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
An Act respecting certain works constructed in or over Navigable Waters, S.C. 1886, c. 35.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 91(10).
Environmental Assessment Act S.S. 1979-80, c. E-10.1.
Environmental Assessment and Review Process Guidelines Order, SOR/84-467.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.1(2) (as enacted by S.C. 1990, c. 8, s. 5), 18.(4) (as enacted idem).
Federal Court Rules, C.R.C., c. 663, R. 1101.
Navigable Waters Protection Act, R.S.C., 1985, c. N-22, ss. 2, 5, 6, 10, 11.
CASES JUDICIALLY CONSIDERED
APPLIED:
Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; [1992] 2 W.W.R. 193; (1992), 84 Alta L.R. (2d) 129; 7 C.E.L.R. (N.S.) 1; Re Coleman et al. and Attorney-General for Ontario et al. (1983), 143 D.L.R. (3d) 608; 12 C.E.L.R. 104; 27 R.P.R. 107 (Ont. H.C.); Carrier-Sekani Tribal Council v. Canada (Minister of the Environment), [1992] 3 F.C. 317 (C.A.).
DISTINGUISHED:
Flewelling v. Johnston (1921), 16 Alta. L.R. 409; 59 D.L.R. 419; [1921] 2 W.W.R. 374 (C.A.).
CONSIDERED:
Saskatchewan Action Foundation for the Environment Inc. v. Saskatchewan (Minister of the Environment and Public Safety) (1992), 86 D.L.R. (4th) 577; [1992] 2 W.W.R. 97 (Sask. C.A.); Reference re Waters and Water-Powers, [1929] S.C.R. 200; [1929] 2 D.L.R. 481.
REFERRED TO:
Attorney-General for the Dominion of Canada v. Attorneys-General for the Provinces of Ontario, Quebec, and Nova Scotia, [1898] A.C 700 (P.C.).
AUTHORS CITED
Canadian Coast Guard. Aids and Waterways: Navigable Waters Protection: Application Guide. Ottawa: Minister of Supply and Services, 1980, reprinted 1989.
APPLICATION for a declaration, under section 18.1 of the Federal Court Act, that the waters of Cutarm Creek are “navigable waters” and that the Navigable Waters Protection Act applies to require approval of proposal for works crossing the creek. Application dismissed.
COUNSEL:
Lawrence S. Portigal for applicant.
Mark R. Kindrachuk for respondent.
SOLICITORS:
Balfour Moss, Regina, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
MacKay J.: This matter commenced as an application by originating motion for an order in the nature of mandamus directing the Minister of Transport to act as the initiating department to conduct an environmental assessment and review, as contemplated under the Environmental Assessment and Review Process Guidelines Order, SOR/84-467, (the Guidelines Order).
The application is somewhat unusual. The applicant, here referred to as IMC, seeks to ensure that all applicable environmental reviews are completed before it commences work on a major project, estimated to cost some $360 million, its Esterhazy Satellite Mine Proposal (the proposal). That proposal includes construction of two trestles carrying pipeline conveyor systems at two locations across Cutarm Creek, to convey potash from its proposed satellite mine site to two existing mine sites. IMC completed its own environmental review and the proposal received ministerial approval under the Environmental Assessment Act of Saskatchewan [S.S. 1979-80, c. E-10.1] in May 1992.
In the course of planning, in light of judicial decisions concerning the applicability of the Guidelines Order to other projects, IMC consulted with officials of the Government of Canada who advised that if any federal agency had authority in relation to environmental aspects of the proposal it would be the Ministry of Transport, by reason of its responsibility under the Navigable Waters Protection Act, R.S.C., 1985, c. N-22 (the Act) for approving works, including bridges that may interfere with navigation on navigable waters. In December 1991 the Saskatchewan Department of the Environment and Public Safety had been advised by an officer of the Navigable Waters Protection Branch of the Canadian Coast Guard, within Transport Canada, that it was determined that the waters of Cutarm Creek at the site of the proposed works are non-navigable within the meaning of the Act. Nevertheless, IMC wrote requesting reconsideration of that decision and that Transport Canada act as an initiating department under the Guidelines Order and conduct an environmental assessment and review of the proposal. By letter of March 4, 1992, the Chief of the Navigable Waters Protection Program Division advised IMC’s solicitors that the waters of the creek were determined to be non-navigable as a result of a site investigation, a determination that was one of fact, and that the Act was not applicable to the proposal, presumably as it might affect Cutarm Creek. Referring to the decision of the Supreme Court of Canada in Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, it was said that since the Act did not apply to Cutarm Creek no affirmative regulatory duty existed in relation to IMC’s proposal and thus no responsibility existed to initiate an environmental review under the Guidelines Order (see, La Forest J. for the majority, at pages 47-50).
It is that decision on behalf of the respondent which gives rise to the application by IMC. It is reluctant to proceed with the work on the proposal if there be a possibility that work might subsequently be interrupted by a court ordered review, under the Guidelines Order, at the intervention of any interested party.
When the matter came on for hearing in Calgary in June 1992, counsel for the parties were agreed that the basic issue before the Court was whether the Act applied to Cutarm Creek, i.e., whether the waters of the Creek were “navigable waters” to which the Act applies. Although the application as filed sought judicial review and an order in the nature of mandamus, at the hearing for the respondent Minister it was agreed, as set out in the affidavit of Reg Watkins filed on behalf of the Minister and an undertaking set out in written submissions, that if the Act were found to be applicable, the applicant’s proposal will be dealt with under subsection 5(1) of the Act, including an environmental assessment and review process under the Guidelines Order. Further, it was agreed on behalf of the respondent that, in so far as this proceeding might be considered judicial review of the decision of March 4, 1992, there was no objection to hearing the matter, though the notice of motion was filed more than 30 days after the decision, and in recognition of the Court’s discretion to extend the time for applying for review, pursuant to section 18.1(2) [enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act, R.S.C., 1985, c. F-7 as amended.
In these circumstances, with agreement of counsel I directed that the proceedings be deemed to be an application for a declaration, pursuant to section 18.1 of the Federal Court Act, with the applicant seeking a declaration that Cutarm Creek is navigable and that the Act applies to Cutarm Creek. If that is the case it is agreed that the proposal of IMC is a project subject to approval under the Act.
The Act itself does not fully define “navigable waters” to which it applies. It does provide in section 2 that “navigable water” includes a canal and any other body of water created or altered as a result of any work. The term is defined, at least for purposes of administering the Act, at page 1, paragraph 2 of Aids and Waterways: Navigable Waters Protection: Application Guide (Canadian Coast Guard, published by the Minister of Supply and Services Canada, 1980, Cat. No. T 31-38/1980, reprinted 1989). That definition is:
“Navigable Waters” includes any body of water capable, in its natural state, of being navigated by floating vessels of any description for the purpose of transportation, recreation or commerce; it also includes a canal and any other body of water created or altered for public use, as a result of the construction of any work, as well as any waterway where the public right of navigation exists by dedication of the waterway for public purposes, or by the public having acquired the right to navigate through long use.
NOTE: The preceding definition is used for administrative purposes only and is not to be construed as a legal definition of navigability; navigability is a matter of fact and not of law. The authority to determine navigability of waterways rests with the Minister of Transport.
While the note following that definition speaks of navigability as a matter of fact, not of law, determinable by the Minister of Transport, the applicant urges that as a question of fact, whether waters are navigable is a matter properly determinable by the courts. In Saskatchewan Action Foundation for the Environment Inc. v. Saskatchewan (Minister of the Environment and Public Safety) (1992), 86 D.L.R. (4th) 577 (Sask. C.A.), at pages 604-607, Sherstobitoff J.A. for the majority determined that in the absence of a statutory definition, where there was no provision for determination by the Minister responsible as to what constitutes a “development” for purposes of the Environmental Assessment Act of Saskatchewan, in the case of a dispute whether a project was a “development” within the statute the decision ultimately rests with the courts as a matter of statutory interpretation.
For the respondent Minister, counsel did not disagree with the characterization of the issue as one of fact, but it was submitted that the issue was a jurisdictional issue and not a matter of fact within paragraph 18.1(4)(d) [as enacted idem] of the Federal Court Act, which authorizes this Court in proceedings for judicial review to award relief where a federal board, commission or tribunal has erred in basing a decision on a finding of fact made in a perverse or capricious manner or without regard to the material before it.
In my view the issue before the Court is a mixed question of fact and law, not simply a question of fact to be determined within the exercise of discretion by the Minister. Rather, it is a preliminary question upon which the Minister’s jurisdiction under the Act depends. If there be dispute about that issue it is ultimately a matter of statutory interpretation, subject to determination by the Court in an application or an action for a declaration.
There is no disagreement on the basic facts as set forth in the affidavits and supporting exhibits of J. David Kelland, Chairman and Chief Executive Officer of the applicant corporation, IMC, and of Reg Watkins, Area Officer, Navigable Waters Protection Program Division of the Canadian Coast Guard, Transport Canada. There is a difference between them and the parties they represent on the question of whether the Act applies to the waters of Cutarm Creek. Kelland avers that the creek is a body of water capable, in its natural state, of being navigated by floating vessels for the purpose of transportation or recreation. Watkins, who made the original decision on behalf of the respondent but who did not actually visit and view the creek and the location of the proposed trestle works until June 1992, avers that the creek is not navigable at the two locations where IMC’s proposed works would cross it, and at other locations, because the waterway is obstructed. I am not satisfied that simply because the creek is obstructed, principally by man-made structures, the creek is to be considered not to be navigable waters under the Act.
Watkins’ affidavit, in part, avers:
5. On 9 June 1992, I attended at Cutarm Creek, where John Mayor, Environmental Engineer with International Minerals & Chemical Corp. (Canada) Ltd. (hereinafter “IMC”), showed me the sites of the works which IMC has proposed to construct. We looked at the waterway from the Highway 80 crossing to the confluence of Cutarm Creek and the Qu’Appelle River, but because the essential question in dealing with IMC’s proposal is whether Cutarm Creek is navigable at the points where the proposed pipeline conveyor system is to cross the waterway, my inspection was focused particularly on the proposed crossing sites.
6. The location of the two points of crossing of the proposed pipeline conveyor system is shown on the plan which appears at page 2-27 of Exhibit “A” to the Kelland Affidavit.
7. At the proposed IMC K-1 crossing, Cutarm Creek is not navigable because the channel is obstructed by two highway causeway crossings (one upstream and one downstream of the proposed conveyor system crossing), and an old unused roadbed which crosses and obstructs the waterway at the proposed conveyor system crossing. In addition, the creek becomes marshy, with no defined channel, at a number of points in the vicinity of the IMC K-1 crossing. Exhibit G-1 to the Kelland Affidavit shows the unused roadbed and, further downstream, one of the highway causeway crossings, both of which completely obstruct the channel.
8. The proposed IMC K-2 crossing also is located at the site of an old unused roadbed, which obstructs the creek. Upstream of the K-2 crossing, the channel is obstructed by IMC’s dam. Downstream of the crossing, the channel is obstructed by the Highway 22 causeway crossing. In the vicinity of the K-2 crossing, the channel is obstructed by a number of beaver dams and again becomes marshy, with no defined channel.
9. Exhibit “G-9” to the Kelland Affidavit is a photograph taken from the top of the dam, looking downstream. While the creek is marshy and obstructed downstream of the dam, it may be possible, at times when the water level is high, to navigate a canoe or similar vessel from the dam outlet to a point below the CNR trestle.
10. Exhibit “G-10” to the Kelland Affidavit is a photograph taken from the highway number 22 causeway crossing, looking upstream. The proposed K-2 crossing is between the highway crossing and the CNR trestle, and obstructs the channel.
11. Exhibits “G-12” and “G-14” to the Kelland Affidavit is a photograph [sic] of a section of the creek between the Highway 22 causeway and the CNR trestle. The waterway in many areas is marshy, with no defined channel, and overgrown with reeds and grasses.
12. Exhibit “G-15” to the Kelland Affidavit is a photograph taken from the Highway 22 causeway, looking downstream. Here, the channel is obstructed by a number of beaver dams and again becomes marshy and overgrown, with no defined channel.
13. As a result of my observations, I am of the opinion that at the two proposed points of crossing, Cutarm Creek is not capable of being navigated by any form of vessel, because the waterway is obstructed.
By written memorandum, counsel for IMC describes Cutarm Creek as “a typical prairie melt water stream [which] varies in size and depth throughout the year. During the spring run off and at other times during the year it is capable of being navigated by boats or rafts.” Nevertheless, I infer that during much of the year the creek is not capable of being navigated by boats, canoes or rafts for any great distance except for the reservoir held by the dam, constructed in the 1960’s in connection with IMC’s existing mine sites. I note incidentally that no reference was made to any earlier application under the Act in connection with the construction of the dam, or the existing or previous highway crossings.
Cutarm Creek is described in IMC’s own Environmental Impact Statement, 1992 at page 3-76 as follows:
The following describes the stream characteristics beginning north of the existing facilities downstream to the Qu’Appelle Valley. Cutarm Creek has limited flow during most of the year. It lies in a meltwater channel which drains south into the Qu’Appelle. The creek changes character noticeably along its length. North of the plant site, upstream of any influence of the existing mining facilities, the stream is marsh-like with poorly defined boundaries. Between that region and the head of the reservoir the stream is better defined consisting of pools and riffles, with the bottom varying between fine sediments and sands in the deeper stretches and gravels in the riffle areas.
The reservoir is long and narrow with the shoreline varying between steep cut banks, meadows and wooded uplands. The east bank has been used for agriculture, primarily grazing, while the west bank is dominated by aspen cover.
Downstream of the reservoir the initial reaches of the creek broaden into a marsh complex, below which the creek alternates between well defined areas and small marshy areas. Where Cutarm Creek meets the Qu’Appelle, the creek becomes a trickle except during spring runoff and severe rainfall events.
I supplement that description by the following details derived from a map filed at the hearing (Energy, Mines and Resources, Canada, map of Spy Hill, 62 K/12 Edition 3, 1987), from colour photographs appended to the affidavit of Kelland as exhibit “G”, from the affidavit of Watkins, and from comments of counsel at the hearing. Cutarm Creek follows a winding shallow valley or depression running from northwest to southeast, passing east of Esterhazy, east of Yarbo and west of Gerald and Spy Hill, to the Qu’Appelle River where it drains at a point almost directly east of Regina and approximately 10 kilometres west of the Saskatchewan-Manitoba boundary. The shallow valley would indicate that at some time in the distant past the creek has carried considerable water, though for much of its length it now meanders and winds along the bottom of the valley.
The valley and the creek are now crossed by a number of constructed works. North northeast of Yarbo, to the east of IMC’s existing K-1 mine site, two causeways cross the valley near the head of the reservoir (created by a dam which lies to the southeast, just northwest of Gerald). These causeways carry highway 80 and highway 20. Between the two causeways lies an old roadbed also crossing the valley and the creek where IMC proposes to construct a trestle to carry the pipeline conveyor system from the proposed satellite mine site to the existing K-1 mine site. Watkins’ affidavit describes this area in paragraph 7 and notes that the two causeways and the old unused roadbed obstruct the waterway in the vicinity of the proposed conveyor system crossing.
Just upstream of the highway 80 crossing, Cutarm Creek appears from the map to form a reservoir of waters held by the dam nearly 8 kilometres to the southeast. The reservoir, by my reading of the map, extends from some pools lying up to nearly 1 kilometre upstream from the highway 80 crossing, then downstream about 550 metres to the highway 20 crossing and thence more than 6 kilometres to the dam. Between highway 20 and the dam, the reservoir, as it appears from the map, is about 100 metres across at its narrowest point and about 350 metres at its widest. No information on the depth of water in the reservoir, or elsewhere along the route of the creek is available.
Below the dam the valley and the creek are crossed by a railway trestle, and by a causeway carrying highway 22 south of Gerald. Between these two crossings from the map it appears there is also a roadway running from the town of Gerald toward the IMC K-2 mine site, though whether this roadway is currently in use is not clear from the evidence. The proposed K-2 trestle site is located over an old unused roadbed crossing the valley and the creek between the railway trestle and the roadway from Gerald, upstream from the highway 22 crossing. Below the dam towards the railway trestle and beyond to highway 22, and again beyond that, Watkins’ affidavit indicates the creek is marshy, with no defined channel and overgrown with reeds and grasses. In the vicinity of the proposed K-2 crossing, and again southeast of highway 22 the creek is also said to be impeded by beaver dams. In Watkins’ affidavit the creek is described as non-navigable in the vicinity of the proposed K-2 crossing. Above that location it is obstructed by the dam, and the railway trestle crosses the valley and the creek. Below this trestle the creek is obstructed by an unused roadbed where the K-2 crossing would be constructed, possibly also by the roadway from Gerald to the K-2 mine site, and it is obstructed again by the highway 22 causeway lying nearly 4 kilometres downstream from the dam.
Watkins, who visited the site only in June, and whose affidavit refers to photographs exhibited by the Kelland affidavit, which photographs show ice in the creek in most cases and remnants of snow in the valley or on the iced surface of the creek, obviously draws his conclusions from views at low water seasons. Nevertheless, he acknowledges that “it may be possible … when the water level is high, to navigate a canoe or similar vessel from the dam outlet to a point beyond the CNR trestle.”
It seems clear that, except for that substantial portion of the year when its surface waters are frozen, Cutarm Creek is navigable by canoe or shallow boat, or raft, at some places but not throughout its length. Thus, in the area of the reservoir above the dam it is now navigable in that sense, though this does not reflect the natural state of the waterway for the reservoir results from construction of the dam, changing the natural state of the creek. In addition to the reservoir area, the creek is navigable for shallow draft craft, at some stretches at least in times of high water. It is not navigable by such craft in the locations of the two proposed conveyor system trestle crossings, because of obstructions, by highway causeways, old roadbeds, and the dam, all of which are the result of construction altering the natural state of the creek.
Do the conditions described bring the waters of Cutarm Creek within the scope of “navigable waters” to which the Act applies? While there is considerable jurisprudence concerning “navigable waters” much of that relates to the rights of riparian owners. Relatively few cases deal with the Act, and of those that do, none deal with the issue here raised, the application of the Act in circumstances where there is dispute whether the waters are navigable within the meaning of the Act.
For both parties the working definition of navigable waters used for administrative purposes in applying the Act is accepted as an appropriate definition, reflecting as it appears to do, the principles enunciated in a number of cases concerning issues of proprietary interests of riparian owners. In Re Coleman et al. and Attorney-General for Ontario et al. (1983), 143 D.L.R. (3d) 608 (Ont. H.C.) at pages 613-615, Mr. Justice Henry summarized the principles arising from this jurisprudence in the following manner (citations are here omitted).
In Canada the leading jurisprudence has evolved in decisions of the Supreme Court of Canada in the early part of the century with respect to waters in the Province of Quebec. The principles emerging from the cases may, for our purposes, be briefly stated without much elaboration.
(1) A stream, to be navigable in law, must be navigable in fact. That is, it must be capable in its natural state of being traversed by large or small craft of some sort—as large as steam vessels and as small as canoes, skiffs and rafts drawing less than one foot of water.
(2) In the context of the Canadian economy where the timber trade has developed, “navigable” also means “floatable” in the sense that the river or stream is used or is capable of use to float logs, log-rafts and booms.
(3) A river or stream may be navigable over part of its course and not navigable over other parts; its capacity for navigation may therefore be determined by the courts independently at different locations.
(4) To be navigable in law a river or stream need not in fact be used for navigation so long as realistically it is capable of being so used.
(5) To be navigable in law, according to the Quebec decisions, the river or stream must be capable of navigation in furtherance of trade and commerce; the test according to the law of Quebec is thus navigability for commercial purposes.
[I note that Henry J. elsewhere in the decision (at pages 616-622 of 143 D.L.R. (3d)), held that usefulness for commercial purposes is not a test of navigability under the law of Ontario. In his view modern conditions of recreational uses by the public of lakes, rivers and streams ought to be taken into account in determining navigability.]
(6) The underlying concept of navigability in law is that the river or stream is a public aqueous highway used or capable of use by the public. This concept does not embrace uses such as irrigation, power, fishing, or other commercial or non-commercial uses that do not depend upon its character as a public aqueous highway for passage. In law a river or stream is not navigable if it is used only for the private purposes, commercial or otherwise, of the owner.
(7) Navigation need not be continuous but may fluctuate seasonally.
(8) Interruptions to navigation such as rapids on an otherwise navigable stream which may, by improvements such as canals be readily circumvented, do not render the river or stream non-navigable in law at those points.
(9) It would seem that a stream not navigable in its natural state may become so as a result of artificial improvements.
In my view some of these principles require qualification when reference is made to them for purposes of determining whether waters are navigable within the purposes of Part I of the Navigable Waters Protection Act. That Part includes provision for approval by the Minister of any work to be constructed in, on, over, under, through or across navigable waters, for removal of works not constructed in accord with the Minister’s approval, and for authority to exempt works from the necessity of approval where the Minister determines that works do not interfere substantially with navigation. The principal section in question here is section 5, which provides:
5. (1) No work shall be built or placed in, on, over, under, through or across any navigable water unless
(a) the work and the site and plans thereof have been approved by the Minister, on such terms and conditions as the Minister deems fit, prior to commencement of construction;
(b) the construction of the work is commenced within six months and completed within three years after the approval referred to in paragraph (a) or within such further period as the Minister may fix; and
(c) the work is built, placed and maintained in accordance with the plans, the regulations and the terms and conditions set out in the approval referred to in paragraph (a).
(2) Except in the case of a bridge, boom, dam or causeway, this section does not apply to any work that, in the opinion of the Minister, does not interfere substantially with navigation.
The predecessor of that Part of the Act, originally enacted in 1886 [S.C. 1886, c. 35], was upheld as valid federal legislation in relation to “navigation”, within subsection 91(10) of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]] by the Privy Council in Attorney-General for the Dominion of Canada v. Attorneys-General for the Provinces of Ontario, Quebec, and Nova Scotia, [1898] A.C. 700, at page 717. That legislative power was subsequently a basis for a number of questions referred to the Supreme Court of Canada in Reference re Waters and Water-Powers, [1929] S.C.R. 200. While the Court indicated the approach to assessing the scope of the legislative authority of Parliament under subsection 91(10), in light of all other heads of legislative power and other relevant sections of the 1867 Act, no question and no comment by the Court referred to the meaning of “navigable waters” upon which the federal power to legislate in relation to navigation would be applicable.
In Friends of the Oldman River Society v. Canada (Minister of Transport), supra, Mr. Justice La Forest, in dealing with the issue whether the Navigable Waters Protection Act applied to the Crown in right of the province, discussed the historic background and the purposes of the Act. A portion of that discussion (at pages 54-62), which has relevance for this case, included the following comments:
The nature of the public right of navigation has been the subject of considerable judicial comment over time, but certain principles have held fast. First, the right of navigation is not a property right, but simply a public right of way … It is not an absolute right, but must be exercised reasonably so as not to interfere with the equal rights of others. Of particular significance for this case is that the right of navigation is paramount to the rights of the owner of the bed, even when the owner is the Crown.
…
… the paramountcy of the public right of navigation … can only be modified or extinguished by an authorizing statute, and as such a Crown grant of land of itself does not and cannot confer a right to interfere with navigation …
What is more, the provinces are constitutionally incapable of enacting legislation authorizing an interference with navigation, since s. 91(10) of the Constitution Act, 1867 gives Parliament exclusive jurisdiction to legislate respecting navigation .…
[La Forest J. then traced the legislative background, the prior statutes antedating the Act here in question, which was first enacted as R.S.C., 1906 c. 115 consolidating prior enactments. That review tends to emphasize the continuing purposes of federal legislation to regulate works or obstructions that adversely affect the public right of navigation.]
…
Certain navigable systems form a critical part of the interprovincial transportation networks which are essential for international trade and commercial activity in Canada. With respect to the contrary view, it makes little sense to suggest that any semblance of Parliament’s legislative objective in exercising its jurisdiction for the conservancy of navigable waters would be achieved were the Crown to be excluded from the operation of the Act. The regulation of navigable waters must be viewed functionally as an integrated whole, and when so viewed it would result in an absurdity if the Crown in right of a province was left to obstruct navigation with impunity at one point along a navigational system, while Parliament assiduously worked to preserve its navigability at another point.
The practical necessity for a uniform regulatory regime for navigable waters has already been recognized by this Court in Whitbread v. Walley, [1990] 3 S.C.R. 1273, and the reasoning given there in support of a single body of maritime law within federal jurisdiction is equally applicable to this case. At pages 1294-95, it is stated:
Quite apart from judicial authority, the very nature of the activities of navigation and shipping, at least as they are practised in this country, makes a uniform maritime law which encompasses navigable inland waterways a practical necessity. Much of the navigational and shipping activity that takes place on Canada’s inland waterways is closely connected with that which takes place within the traditional geographic sphere of maritime law. This is most obviously the case when one looks to the Great Lakes and the St. Lawrence Seaway, which are to a very large degree an extension, or alternatively the beginning, of the shipping lanes by which this country does business with the world. But it is also apparent when one looks to the many smaller rivers and waterways that serve as ports of call for ocean going vessels and as the points of departure for some of Canada’s most important exports. This is undoubtedly one of the considerations that led the courts of British North America to rule that the public right of navigation, in contradistinction to the English position, extended to all navigable rivers regardless of whether or not they were within the ebb and flow of the tide …. It probably also explains why the Fathers of Confederation thought it necessary to assign the broad and general power over navigation and shipping to the central rather than the provincial governments ….
Were the Crown in right of a province permitted to undermine the integrity of the essential navigational networks in Canadian waters, the legislative purpose of the Navigable Waters Protection Act would, in my view, effectively be emasculated.
In Carrier-Sekani Tribal Council v. Canada (Minister of the Environment), [1992] 3 F.C. 317 (C.A.) Marceau J.A., for the Court, dealt with the issue of responsibility of the Minister of Transport to initiate an environmental review under the Guidelines Order where he had granted exemption from the approval process under subsection 5(2) of the Navigable Waters Protection Act. He said in part, at pages 341-342:
(iii) It is also clear to me that the declarations of exemption issued by the Minister of Transport for certain elements of the KCP that required construction in, or across, navigable waters could not trigger the application of the Guidelines.
[He then quoted subsections 5(1) and 5(2) of the Act and continued.]
In providing in subsection 5(2) that, where a project does not interfere substantially with navigation, subsection 5(1) does not apply, Parliament has clearly indicated that the Minister has no regulatory duty or power in relation to works which do not interfere with navigation. This limitation is wholly in keeping with the federal jurisdiction under the Constitution, which only arises when there is an actual or eventual impact on navigation.
As is clear from the comments of Mr. Justice La Forest and of Marceau J.A. the legislative authority of Parliament under subsection 91(10) of the Constitution Act, 1867 in relation to navigation concerns the regulation of the public right to travel or transport for trade, communication or recreation on waters capable of carrying vessels, even vessels of shallow draft such as canoes, using those waters as a highway from one place to another. That authority is not in relation to waters but to the public right of navigation.
The Navigable Waters Protection Act in Part I provides in section 5 that works, broadly defined, that may interfere with navigation (that is, the public right to travel by water highway), shall not be built or placed in, on, over, under, through or across any navigable water unless the project is approved by the respondent Minister prior to construction, except for any work, other than a bridge, boom, dam or causeway, that in the Minister’s opinion does not substantially interfere with navigation. Unauthorized works may be removed on order of the Minister under section 6, and under section 10 rebuilding or altering of lawful works may be undertaken with approval of the Minister if in his opinion interference with navigation is not increased. The Act provides that where approval of works is granted for a defined time, renewal of approval may be granted thereafter (section 11), and where an existing work, in the Minister’s opinion, has become a danger to or an interference with navigation, by the passage of time and changing conditions in navigation of the navigable waters concerned, then any rebuilding, repair or alteration of the work is to be treated as a new work (subsection 10(4)).
The underlying purpose of this Part of the Act is to protect navigation, the public right to use navigable waters as a highway for purposes, already referred to, that go beyond commercial uses. Navigable waters within the Act implicitly include the concept of an aqueous highway, as Mr. Justice Henry described the underlying concept of navigability in law. That concept in turn implies, to me, that the waters be more than a small pond or lake isolated from other waters, and more than a prairie slough that fills with spring melt and virtually dries up in late summer. It implies as well that the waters connect places which in the normal course would facilitate travel, even recreational travel, on a route that would have a likelihood of reasonable appeal to members of the public as a route to be travelled. The fact that a body of water will carry a canoe or other vessel is not in itself sufficient as a basis for considering the waters navigable and subject to regulation under the Act.
Conditions affecting navigation particularly on rivers, streams and creeks may vary over time. One thing would seem clear in light of the purpose of the Act, that is, that waters which in their natural state are navigable waters and thus subject to regulation under the Act continue to be so even though conditions change either by the forces of nature or by the construction of works affecting navigation. Thus, a river, stream or creek that is, in its natural state, navigable in fact in the sense included within the Act, even for part of its length, would continue to be so after its course is obstructed by natural forces or by constructed works. On the other hand a river, stream or creek that in its natural state is not navigable in fact in the sense included within the Act does not become so by alteration of the natural state unless some portion of the waters then becomes capable of carrying vessels using the waters as an aqueous highway for travel or transport for trade, communication or recreation. Even where that may be the result of change, the navigable waters so created do not extend beyond the area where the waters are in fact navigable in that sense. Thus where change creates navigable waters in a river, stream or creek, those portions of the waterway which in their natural state are not navigable, and which are not affected by the change in conditions, do not become navigable merely because some other portion of the river is deemed to be navigable. In short, the waters must be navigable in fact, that is, capable of carrying a vessel and for purposes of the Navigable Waters Protection Act the waters must form an aqueous highway as previously described.
There is another aspect of conditions experienced along Cutarm Creek that requires brief consideration, that is, its state at periods of high run-off, normally in the spring. Those conditions are not described in evidence before me except for Watkins’ speculation that at periods of high water a canoe might travel for a brief distance below the dam. Even if, in periods of high water, Cutarm Creek in its natural state could provide the opportunity for travel by canoe or shallow draft vessel for a considerable portion of its length there is no evidence that in the normally short season of high run-off, the creek has served as an aqueous highway or that it is likely to have reasonable appeal to the public to be used as a highway for navigation. In my view, it would extend the concept of “navigation” beyond that contemplated or warranted within Parliament’s powers under subsection 91(10) to include as “navigable waters” under the Navigable Waters Protection Act those creeks or streams that in their natural state throughout most of the year are not navigable in fact simply because for limited periods of high water during spring run-off or following extraordinary precipitation they are capable of carrying vessels of shallow draft. Rivers or streams that, in high water seasons, have a history of being used for flotation of logs, or that would be capable of carrying logs in areas where logging is a reasonable possibility may present a special case in this country, but that case does not arise in regard to Cutarm Creek.
One case referred to by the applicant, for support of its proposition that the issue of navigability is a question of fact, was Flewelling v. Johnston (1921), 16 Alta. L.R. 409 (App. Div.), an action for trespass to land, where the Pembina River was found to be navigable at the location in question, a determination necessary for assessing the plaintiff’s claim to title in the land. The decision concerns the boundaries of land adjacent to the river. The determination was made on the ground that at the location in question at low water the river was about 300 feet wide and 3 feet deep, and at high water the level rose some 9.5 feet for about two of the seven months that the waters were not frozen. Those conditions are very different from any presented concerning Cutarm Creek. The decision concerned the boundaries of land along the river. It was not a determination of whether the river was navigable for purposes of the Act. Indeed, it is interesting that the Court’s finding was made on evidence of the natural state of the river at low and high water despite testimony by a Dominion land surveyor, who was perhaps thinking of navigable waters in terms of the federal Act, that to all intents and purposes the river was not a navigable river.
Against the background of general considerations drawn from my view of the purposes of the Act in light of Parliament’s legislative power in relation to navigation, I turn to consider the waters of Cutarm Creek and the application of the Act.
Despite the affirmation otherwise by Mr. Kelland, which is not supported by any detailed historical or current information on uses of the waters of the creek for purposes of navigation, I find that the waters of Cutarm Creek, in their natural state, are not navigable waters within the meaning of those words as used in the Act. There is no evidence of navigation by floating vessels using the waters of the creek in their natural state as a highway for transportation or recreation. The description of the current conditions of the creek in IMC’s own Environmental Impact Statement includes the following: limited flow during most of the year, a meltwater channel which is marsh-like with poorly defined boundaries upstream from the reservoir and further marshy areas, then mixed marsh and well defined areas below the reservoir, the creek becomes a trickle where it meets the Qu’Appelle except during spring run-off and severe rainfall events. In my view, this belies any serious consideration of use of the creek as an aqueous highway, except possibly for the area now filled by the reservoir.
Even if, at periods of high water following spring melt or unusual precipitation, the creek is capable in Mr. Kelland’s words “of being navigated by floating vessels for the purposes of transportation or recreation”, I infer that those periods are of such short duration that the creek is not likely to be considered for use as an aqueous highway and the waters of the creek are not navigable for purposes of the Act. If I am wrong in that inference, the practical implication in this northern country where spring melt swells every creek, stream and river, the multitude of such waterways throughout Canada would virtually all be subject to the Act and every work affecting their flow at high water would be subject to approval of the Minister. I do not think that result could have been contemplated either by Parliament in enacting the statute, or by the Parliament at Westminster in regard to subsection 91(10) of the Constitution Act, 1867.
Finally, even if that portion of Cutarm Creek now constituting a sizable reservoir behind the dam located northwest of Gerald could now be deemed to constitute navigable waters under the Act, a finding I decline to make in the absence of evidence of use or a likelihood of their use by members of the public as an aqueous highway, that has no bearing on the state of the creek at places unaffected by the creation of the reservoir.
Here the crossings, by trestles, included in the applicant’s project lie beyond the defined portions of the creek within the area of the reservoir, one crossing to the mine site at K-1 lying above the reservoir and the other to the mine site at K-2 lying below the reservoir. In my view, neither crossing is at a location where the waters of Cutarm Creek are navigable within the purposes of the Navigable Waters Protection Act. Thus, they are not works requiring the approval of the respondent Minister under that Act. I reach the same conclusion, in light of the purposes of the Act, as those who acted for the Minister, but for somewhat different reasons. If there is no affirmative regulatory duty imposed by statute on the Minister, he has no responsibility, or authority, to initiate an environmental review under the Guidelines Order. (Friends of the Oldman River Society v. Canada (Minister of Transport), supra, per La Forest J. at pages 47-50).
For these reasons the application of IMC for a declaration that the waters of Cutarm Creek are navigable waters and that the Navigable Waters Protection Act applies to require approval of its proposal for works crossing the creek, is dismissed. No costs are awarded, none being requested by the respondent and none ordinarily being awarded in an application for a declaration under section 18.1 of the Federal Court Act.
I add that in the event there is an appeal of my order the appellant is directed to serve notice upon the Attorney General of Canada and the Attorney General of Saskatchewan so that each may consider whether the appeal raises a question of general importance which might lead to an application for leave to intervene or to take part in the hearing of an appeal, pursuant to Rule 1101 of the Federal Court Rules [C.R.C., c. 663]. The order dismissing the application will so provide.