Stay tuned for my draft paper: Les Amis Experience with the Laniel Dam Refurbishment Project - putting teething into CEAA screening assessments.
Friday, March 16, 2007
Today's Rivers, Tomorrows Nightmare
Stay tuned for my draft paper: Les Amis Experience with the Laniel Dam Refurbishment Project - putting teething into CEAA screening assessments.
River Modification Policy
Whitewater Ontario
Policy Manual
Item:
Conversion of whitewater paddling potential to hydro power supply
Date: 2007 03 12
Organizations Affected:
Ontario Power Authority Supply Planners, IPSPsubmissions@powerauthority.on.ca.
Approved by Whitewater Ontario Executive: Not yet approved
Review Dates:
Preamble
Whitewater Ontario, a not-for-profit organization under the umbrella
of Canoe Ontario serves as the voice of paddlers' interests to government and business. We are the designated provincial whitewater sport paddling organization and owner/operator of the Minden Wild Water Preserve in Minden. We have a membership of around 500 active members, 6 active clubs, and 25 corporate members across the province.
We believe that the best development is one which takes into consideration the multiple values of a resource. Whitewater Ontario is very interested in all aspects of river development which may impinge upon the traditional rights of whitewater recreational and commercial paddlers.
Our organization wants to increase access to whitewater resources and work cooperatively to develop whitewater recreation opportunities in Ontario and Canada.
Navigability
Rivers must be regarded as public navigable rivers in law when they are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water - this definition has been expanded to include recreational whitewater paddling use.
1. A river is regarded as a “public navigable river” if it is susceptible of being used in its ordinary condition as a highway for commerce over which trade and travel are or may be conducted in the customary modes of travel and trade on water.
2. A river that is navigable in fact is navigable in law.
3. The test of navigability, as applied to “navigable waters,” is the capability of being used for useful purposes of navigation, of trade and travel in the usual & ordinary modes, and not the extent and manner of such use.
The beds of rivers flowing through public lands are usually owned by either the federal or provincial government. These rivers are open for public use, and subject only to regulation by the agency managing the adjacent lands.
Legal cases have established the fundamental understanding that the management of public natural resources must avoid substantial impairment of natural resources, the appearance of discrimination between competing uses, and implementation of discriminating fees.
Furthermore, despite the recent advertising and promotional campaigns by Ontario Power Generation Corp, (OPG) There is no evidence that recreational canoe and kayak access downstream of dams poses a security risk and further, in the case of Les Amis de la Riviere Kipawa vrs. the attorney General there is no evidence that navigating the sluice of a properly designed water control sluiceway is dangerous.
Whitewater enthusiasts are often stereotyped as mindless thrill-seekers with a death wish. The reality is quite different. Paddlers represent a true cross-section of our society and include many highly educated professionals. They know the limits of their skills, and by choosing what rapids they run, they control the intensity of their experience. It is a life-long sport that nurtures a love for wild places and an appetite for low-impact, human powered travel. Extreme paddlers are especially calculating when exposing themselves to danger. Today 28% of all Canadians currently participate in – or intend to participate in – this type of activity.
Whitewater paddlers, like other risk sport enthusiasts, approach their activity with a focus and intensity not often found in traditional outdoor recreation. They’re aware of the dangers and take concrete steps to avoid them. They purchase highly specialized equipment and work hard to develop the skills they need. They condition themselves mentally and physically and learn first aid and rescue skills before setting out. They have a strong sense of personal responsibility and a full understanding of the consequences of their actions. Drug and alcohol abuse is quite rare. Because of their expertise and involvement the actual risks they face are not much more than those encountered by inexperienced people in traditional outdoor recreation slightly fewer deaths than rock climbing and slightly more deaths than recreational swimming.
Natural Rivers
Whitewater Ontario opposes modifications to natural, free-flowing rivers, to rivers that have been designated as wild or scenic, and to rivers which have been named by managing agencies as eligible or suitable for such designation.
Case by Case Decisions
Whitewater Ontario views proposals for river modification with caution, recognizing that changes, once made, may be difficult or impossible to unmake and in many cases may create new and often more dangerous conditions. Whitewater Ontario may oppose, not oppose, or endorse proposed modifications to rivers depending upon the specific needs, impacts and details associated with this action. Whitewater Ontario may assist with planning or funding of river modifications if it endorses those modifications.
Authority
Guided by this River Modification Policy, Whitewater Ontario will either support or not support proposed river modifications. Before choosing to endorse a river modification, the President will consult with the appropriate Committees and seek ratification by the Executive of Whitewater Ontario.
No Harm Policy
Whitewater Ontario will oppose proposals for river modifications unless it has reason to believe that the proposed modification will not adversely impact the enjoyment of rivers by other recreational groups and will not have a significantly adverse effect on the riverine ecosystem.
Categories of Modifications
Whitewater Ontario considers modifications to rivers associated with recreational paddling to be for one of three purposes: for enhancing safety, improving navigability, or enhancing recreational opportunities.
Enhancing Safety
Modifications for the purpose of enhancing safety include changes that remove or reduce objective dangers, such as demonstrated entrapment hazards. A decision by Whitewater Ontario in favor of safety modifications is more likely if
(a) the modification does not change the physical or visual characteristics of a rapid,
(b) the river receives a high level of use, and
(c) the hazard in question has been demonstrated to cause drownings or near drownings.
Improving Navigability
Whitewater Ontario opposes river modifications for the purpose of improving navigability including changes to rapids that make passage of boats easier or that reduce the difficulty rating of rapids.
The organization recognizes that portaging is usually an option for avoidance of specific obstacles and that advances in technique, skill, and equipment have historically made impossible rapids possible and difficult rapids routine.
Presently, unrunnable or difficult rapids are tomorrow’s first descents or play spots.
It is Whitewater Ontario's position that there is a firm distinction to be made between improvements for the purpose of improving navigability and those made for reduction of objective hazards.
For this reason, a proposed modification to remove a subjective hazard (such as a wave that routinely flips rafts) or to reduce the overall difficulty of a rapid is considered by Whitewater Ontario as a modification for the purpose of improving navigability rather than safety.
Enhancing Recreational Opportunities
Modifications for the purpose of enhancing recreational opportunities range from moving a few rocks to enhance a play hole to the construction of a completely artificial whitewater race course. A decision by Whitewater Ontario on proposed recreational enhancements hinges on the degree of previous modification of the river, the degree of terrestrial development along a river, impact of the proposal on the riverine and riparian ecosystems, and impact on enjoyment or future enjoyment by other recreational users. For example, Whitewater Ontario would oppose modifications for recreational enhancement of a pristine, wilderness river, but might choose to endorse the construction of a play hole in a highly modified, urban river.
Artificial Structures Obstructing Navigability
Whitewater Ontario opposes construction of structures or artificial placement of natural and synthetic materials which may interfere with navigation. These structures include but are not limited to dams, weirs, bridges, fences, and fish habitat structures.
At existing low head dams, Whitewater Ontario advocates dam removal or modification for safe passage. In cases where modifications are not possible, Whitewater Ontario advocates availability of portage routes.
Stakeholder Involvement and Agency Approval
Whitewater Ontario will not endorse river modifications on whitewater rivers which do not seek public input and comment. Public comment must include Whitewater Ontario, local whitewater clubs, and other local regional and national river recreation and conservation organizations. Whitewater Ontario will also not endorse any river modification proposal that has not obtained the necessary managing agency permission prior to construction.
In general, Whitewater Ontario opposes river modifications made without consultation with a broad spectrum of user groups or made without agency authorization and which have not made signficant and best efforts to mitigate environmental effects on whitewater navigation.
Whitewater Ontario would like to be directly notified, via email dispatches, of pending river development projects that may impinge upon traditional whitewater paddling activities including bridges, or dams, which may curtail traditional navigation as described under the Navigable Waters Protection Act and any shore side development which may curtail traditional access and portage rights.
The New Whitewater Ontario, actively pursuing issues for the good of Ontario paddlers:
Letter to MNR:
Robert Taylor
Director of the Lands & Waters Branch
Ontario Ministry of Natural Resources
P.O. Box 7000
300 Water Street
Peterborough, Ontario
K9J 8M5
I understand the Ministry of Natural Resources has a Renewable Energy
Program in place to facilitate, among other things, the development of small hydro-power projects in Ontario.
Whitewater Ontario is a not-for-profit organizaton under the umbrella of Canoe Ontario. Whitewater Ontario is here to serve as the voice of paddlers interests to government and business. We want to increase access to whitewater resources and work cooperatively to develop whitewater recreation opportunities in Ontario and Canada. We are the designated provincial whitewater sport paddling organization and owner/operator of the Minden Wildwater Preserve in Minden. We have a membership of around 500 active members, 6 active clubs, and 25 corporate members across the province.
Whitewater Ontario is very interested in all aspects of river development which may impinge upon the traditional rights of whitewater recreational and commercial paddlers. We wish to establish a dialogue with key Ministry (MNR) Contacts and take steps to ensure that Whitewater Ontario and/or its affiliates will be considered as potential intervenors, committee members and stakeholders of record for the development of new water management
plans in the province.
As an organization, we are responsible for acting in and speaking for the interests of our members - the paddling community.
As whitewater paddlers, our interests often overlap with the interests of hydro-power development. But we understand that is the reality of resource use today, and that the best development is a development that takes into consideration all of the values of a resource.
We are dismayed by case on a Quebec river that is currently being argued in federal court, where a dam owner completely ignored the navigation rights of paddlers in contravention of the Navigable Waters Protection Act.
We believe that the courts are not the place to resolve issues of
conflicting resource use. We believe we can help the province and
hydro-developers work through navigation rights issues on rivers in a
collaborative way.
Whitewater Ontario would like to be directly notified, via email
dispatches, of pending river development projects that may impinge upon traditional whitewater paddling activities including bridges, or dams, which may curtail traditional navigation as described under the Navigable Waters Protection Act and any shoreside development which may curtail traditional access and portage rights.
To this end, please record Whitewater Ontario as a stakeholder of record on all new site applications. We believe the number of new site projects that paddlers will have concerns about will be small. In those situations, we will be able to provide assistance in the public consultation, environmental assessment and impact assessment phases.
Your assistance would be appreciated in achieving these objectives.
Yours truly,
Peter Karwacki
cc to the Minister of Natural Resources the Honorable David Ramsey
Tabaret Rears its Ugly Head
The transfer of the Dam to Quebec for the purposes of Tabaret was already mentioned in the Kipawa Dam Operating Manual. The environmental assessment of the dam refurbishment did not even address this point.
Further, the dam is now being transferred in a renovated state: basically a cash transfer from the Taxpayers of CANADA to the province of Quebec.
This happens no where else that I know of.
The refurbished dam creates a more perfect diversion for the Tabaret Project. Note the Opemican Park NOTCH elsewhere on this site.
Once the tap is turned of that's it for the Kipawa, once mighty it becomes a dried out gulch.
For details read below:
No: T-452-06
COUR FÉDÉRALE
ENTRE:
LES AMIS DE LA RIVIÈRE KIPAWA,
incorporated as 1162209036 QUEBEC INC.
Plaintiff
and
THE ATTORNEY GENERAL OF CANADA and THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES CANADA, THE MINISTER OF FISHERIES AND OCEANS, THE MINISTER OF TRANSPORT, and
DAVID S. LAFLAMME CONSTRUCTION INC.
Defendant
Synopsis
This case involves a federal court application by Les Amis de la Rivière Kipawa for judicial review of a decision by Transport Canada and PWGSC to eliminate historic navigation rights on the Kipawa River at the location of the Laniel flood control dam in Laniel Quebec.
Note to long afterwards we see this:
Minister Fortier Confirms the Intention of the Government of Canada to Transfer Three Dams to the Government of Quebec
CCNMatthews; 8/24/2006
The Honourable Michael M Fortier, Minister of Public Works and Government Services, today announced the decision of the Government of Canada to transfer the management of three dams, located in the Temiscamingue region, to the Government of Quebec. Negotiations between the Government of Canada and the Government of Quebec are expected to be finalized by the end of 2006.
"This transfer will allow the Government of Quebec to obtain an asset well-suited to its mandate to manage its own energy and natural resources, while allowing the federal government to focus on our federal priorities," said Minister Fortier, adding, "this is a concrete demonstration of the vision of federalism of the new Government of Canada".
The transfer of these dams is consistent with federal government policy to divest of assets that are not supportive of federal programs. Once the transfer takes place, the province will assume full responsibility for the operation, maintenance and improvements of the three dams.
The transfer of the Kipawa and Des Quinze Dams, along with the agreement to transfer Laniel, may take place in 2007. The Government has agreed to delay the actual transfer of the Laniel Dam to take place only when its reconstruction has been completed. The contract was awarded in November 2005 and the work is underway.
The transfer will include the reconstruction of the Laniel Dam, and a financial compensation from the Government of Canada. This compensation will represent the actual value of the capital costs to repair and operate the dams for a period of 20 years, which will allow the Government of Quebec to continue to operate, maintain and upgrade the three dams.
The three dams were all constructed by the Government of Canada between 1912 and 1914 to control water levels on the Ottawa River.
Ce texte est egalement disponible en francais.
BACKGROUNDER
TRANSFER OF THE LANIEL, KIPAWA AND DES QUINZE DAMS TO THE GOVERNMENT OF QUEBEC
The Government of Canada has confirmed the intention to transfer three dams in Temiscamingue to the Government of Quebec. The transfers of the Kipawa and Des Quinze dams will take place in early 2007, after the Government of Quebec has concluded its approval process. This transfer will include a financial compensation from the Government of Canada to allow the Government of Quebec to continue maintenance and upgrades of the dams. The federal government will complete a reconstruction project at Laniel Dam, currently underway, before the transfer of this dam takes place.
The federal government built the three dams in the early part of the twentieth century, to control the water level of the Ottawa River. They are all landmarks in their local communities and have benefited the local community and attracted tourists.
The Laniel Dam is located across the Kipawa River at the outlet of Kipawa Lake, in the town of Laniel, Quebec. It is a concrete gravity dam with two gates, approximately 31 metres in length. This dam was constructed between 1910 and 1912. Major repairs were undertaken on the deck, piers and abutments in 1988, 1993 and 1996. A contract was announced in November 2005 to rebuild the dam, for health and safety reasons. The contract was awarded to David S. Laflamme Construction Inc., and the work will likely be completed in 2008. The federal Government has agreed to ensure that this work is completed before the dam is transferred to the Government of Quebec.
The Kipawa Dam is across Gordon Creek at the outlet of Kipawa Lake in the town of Kipawa, Quebec. It is a concrete gravity dam with bottom gates and is about 10 meters long. This dam was built between 1910 and 1912. The roadway deck was rebuilt in 1993 and 1994. It has been regularly inspected, maintained and is in good condition.
The Des Quinze Dam is across the Ottawa River at the outlet of Quinze Lake, in the village of Angliers, Quebec. It is a concrete gravity dam complete with 19 gates measuring approximately 143 metres long. There is also a long dike on the north-west side and a secondary dike to the east. This dam was constructed between 1911 and 1914. It was later reconstructed in 1939 and 1940, just downstream of the old dam. The roadway deck was widened in 1990 and part of the operating deck was rebuilt. The remaining part of the operating deck was rebuilt in 1996 and 1997, leaving it in good condition.
All of these transfers will provide the Province a valuable natural resource that will benefit the people of Quebec.
SOURCE: Public Works and Government Services Canada
Office of Minister Fortier
Jean-Luc Benoit
Director of Communications
(819) 997-5421
Public Works and Government Services Canada
Media Relations
(819) 956-2315
**********Have a Nice Day**********
Further, the dam is now being transferred in a renovated state: basically a cash transfer from the Taxpayers of CANADA to the province of Quebec.
This happens no where else that I know of.
The refurbished dam creates a more perfect diversion for the Tabaret Project. Note the Opemican Park NOTCH elsewhere on this site.
Once the tap is turned of that's it for the Kipawa, once mighty it becomes a dried out gulch.
For details read below:
No: T-452-06
COUR FÉDÉRALE
ENTRE:
LES AMIS DE LA RIVIÈRE KIPAWA,
incorporated as 1162209036 QUEBEC INC.
Plaintiff
and
THE ATTORNEY GENERAL OF CANADA and THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES CANADA, THE MINISTER OF FISHERIES AND OCEANS, THE MINISTER OF TRANSPORT, and
DAVID S. LAFLAMME CONSTRUCTION INC.
Defendant
Synopsis
This case involves a federal court application by Les Amis de la Rivière Kipawa for judicial review of a decision by Transport Canada and PWGSC to eliminate historic navigation rights on the Kipawa River at the location of the Laniel flood control dam in Laniel Quebec.
Note to long afterwards we see this:
Minister Fortier Confirms the Intention of the Government of Canada to Transfer Three Dams to the Government of Quebec
CCNMatthews; 8/24/2006
The Honourable Michael M Fortier, Minister of Public Works and Government Services, today announced the decision of the Government of Canada to transfer the management of three dams, located in the Temiscamingue region, to the Government of Quebec. Negotiations between the Government of Canada and the Government of Quebec are expected to be finalized by the end of 2006.
"This transfer will allow the Government of Quebec to obtain an asset well-suited to its mandate to manage its own energy and natural resources, while allowing the federal government to focus on our federal priorities," said Minister Fortier, adding, "this is a concrete demonstration of the vision of federalism of the new Government of Canada".
The transfer of these dams is consistent with federal government policy to divest of assets that are not supportive of federal programs. Once the transfer takes place, the province will assume full responsibility for the operation, maintenance and improvements of the three dams.
The transfer of the Kipawa and Des Quinze Dams, along with the agreement to transfer Laniel, may take place in 2007. The Government has agreed to delay the actual transfer of the Laniel Dam to take place only when its reconstruction has been completed. The contract was awarded in November 2005 and the work is underway.
The transfer will include the reconstruction of the Laniel Dam, and a financial compensation from the Government of Canada. This compensation will represent the actual value of the capital costs to repair and operate the dams for a period of 20 years, which will allow the Government of Quebec to continue to operate, maintain and upgrade the three dams.
The three dams were all constructed by the Government of Canada between 1912 and 1914 to control water levels on the Ottawa River.
Ce texte est egalement disponible en francais.
BACKGROUNDER
TRANSFER OF THE LANIEL, KIPAWA AND DES QUINZE DAMS TO THE GOVERNMENT OF QUEBEC
The Government of Canada has confirmed the intention to transfer three dams in Temiscamingue to the Government of Quebec. The transfers of the Kipawa and Des Quinze dams will take place in early 2007, after the Government of Quebec has concluded its approval process. This transfer will include a financial compensation from the Government of Canada to allow the Government of Quebec to continue maintenance and upgrades of the dams. The federal government will complete a reconstruction project at Laniel Dam, currently underway, before the transfer of this dam takes place.
The federal government built the three dams in the early part of the twentieth century, to control the water level of the Ottawa River. They are all landmarks in their local communities and have benefited the local community and attracted tourists.
The Laniel Dam is located across the Kipawa River at the outlet of Kipawa Lake, in the town of Laniel, Quebec. It is a concrete gravity dam with two gates, approximately 31 metres in length. This dam was constructed between 1910 and 1912. Major repairs were undertaken on the deck, piers and abutments in 1988, 1993 and 1996. A contract was announced in November 2005 to rebuild the dam, for health and safety reasons. The contract was awarded to David S. Laflamme Construction Inc., and the work will likely be completed in 2008. The federal Government has agreed to ensure that this work is completed before the dam is transferred to the Government of Quebec.
The Kipawa Dam is across Gordon Creek at the outlet of Kipawa Lake in the town of Kipawa, Quebec. It is a concrete gravity dam with bottom gates and is about 10 meters long. This dam was built between 1910 and 1912. The roadway deck was rebuilt in 1993 and 1994. It has been regularly inspected, maintained and is in good condition.
The Des Quinze Dam is across the Ottawa River at the outlet of Quinze Lake, in the village of Angliers, Quebec. It is a concrete gravity dam complete with 19 gates measuring approximately 143 metres long. There is also a long dike on the north-west side and a secondary dike to the east. This dam was constructed between 1911 and 1914. It was later reconstructed in 1939 and 1940, just downstream of the old dam. The roadway deck was widened in 1990 and part of the operating deck was rebuilt. The remaining part of the operating deck was rebuilt in 1996 and 1997, leaving it in good condition.
All of these transfers will provide the Province a valuable natural resource that will benefit the people of Quebec.
SOURCE: Public Works and Government Services Canada
Office of Minister Fortier
Jean-Luc Benoit
Director of Communications
(819) 997-5421
Public Works and Government Services Canada
Media Relations
(819) 956-2315
**********Have a Nice Day**********
Engineer's Letter poses a sticky wicket
Essentially the Kipawa can be lost due to this man's interpretation stamped with his engineer's stamp. Anybody that has ever run the Kipawa River at the dam and enjoyed it should provide him with their own evidence that his opinion is flawed and a qualification should be reissued to the EA project officers and to Mr. Laport.
Action: as usual urgent action is required: letters should be sent to
Pierre R. Tremblay, Director de projet (Quebec 22603)
Tecsult International Ltd (TIL)
Street 85 St. Catherine Street West
City Montréal, QC H2X 3P4
Country Canada
Telephone (+1) 514 - 287 85 00
Facsimile (+1) 514 - 287 86 30
E-Mail webmestre@tecsult.com
Internet www.tecsult.com
Dear Mr. Tremblay,
RE:Letter to R. Laport dated June 15, Ref: 0513337-3000
Further to my telephone discussion with you I must ask your indulgence. Your letter to the Mr. Laporte forms the basis for the argument in the Environmental Assessment of the Laniel Dam Refurbishment that the dam is not safe for navigation. I take strong exception to your position.
You may now be aware that in complete opposition to your statement to Mr. Laporte, "Ces conditions ne permettent pas le passage sécuritare d'embarcations quelles qu'en soit le type" kayaks, rafts and canoes have been navigating the Kipawa River at the location of the Laniel dam since 1967 and specifically for the last 19 years of the Kipawa River Rally, held each June in which hundreds of persons have engaged safely in this activity.
I think it would be fair to issue a qualification to your remarks. They aren't based on anything except ignorance or fear of the unknown. Mind you, I don't say that everyone should engage in this activity either, but to say it is unsafe for everyone is absolutely false.
We have a right of navigation of the Kipawa River through a period of longstanding regardless of your opinion and the recreation paddling community will work hard to preserve it including filing a formal complaint to the engineering society unless you qualify your opinion to reflect the reality of the situation. You should at least consult the views of experts in whitewater recreation safety and I can arrange to give you that information.
Here is one example:
Gary Lacy, P.E.
Scott Shipley, Engineer
Recreation Engineering and Planning
485 Arapahoe Ave
Boulder, CO, 80302
(303) 545-5883
(303) 819-3985 (Scott Cell)
http://www.wwparks.com/
Mr. Tremblay, there is much at stake here.
I wanted to try and explain the Navigability issue a bit further.
The Navigable Water's Protection Act is drafted to protect the public's right to navigate our waterways. The navigability of the dam at Laniel is a matter of fact and a matter of law. It has been used commercially (rafts) and recreactionally safely for over 20 years. If navigability of the dam can be maintained, then so can navigability of the entire river since that is where the water is coming from.
We don't want to wait until the water is turned off (diverted) to act. Actually what we want to do is bump up the issue of navigability of the dam to the level of a Federal Court Action to raise general awareness of the issues surrounding the Kipawa. Tabaret and Energex projects are still looming in the wings, in fact the Quebec Government is poised to announce its ruling on Tabaret. These are diversion projects.
Man made structures like dams are navigated at Laniel, Minden, the Magnetawan, the Achigan and Bonnybrook in Quebec,the Moose River in New York, I believe, also one on the St. Lawrence at Long Sault. Its not a new thing, but it is a right of Canadians, part of our national heritage. If we give up that right, without even a whimper it won't be easily won back.
I appreciate your feedback on this issue because ultimately we'll need to address concerns like those you've expressed and we have to raise funds to pay for the court action. I estimate it cost as much as $30,000 to fund the court action which is a Judicial Review of the Transport Minister's Decision and Writ of Mandamus requiring the Minister of Transport to enforce the act to preserve navigability.
See the following past action: lost but instructive: http://decisions.fct-cf.gc.ca/fct/2002/2002fct421.shtml
Humber Environmental Action Group and Minster of Fisheries and Oceans.
In that case the judge ruled:
"And at paragraph 93:
I therefore conclude that the record as it stands does not allow the Court to conclude that the primary condition for the Navigable Waters Protection Act, supra, to apply, that is, the navigability of the Eastmain River, has been established. The Minister of Transport could not exercise any decision-making power which would trigger the application of the Order before being persuaded of the navigability of the watercourse."
The current design for the redesigned dam at Laniel has a top release spillway on the south gate much like the current, except it also has a spillway, a rounded hump which accorting to Scott Shipley, a whitewater design engineer from boulder Colorado does not conform to contemporary design features.
What a great opportunity for Public Works canada to assist the local community of Laniel and benefit tourism in the Temiskaming area. The largest group of tourist are the annual groups of paddlers who tour the Kipawa each year. Ask the Mayor of Laniel and local depanneur.The largest tourism event in Laniel is the Annual Kipawa river festival attracting hundreds of paddlers on the Saint Jean Baptist weekend , and other weekends from April to Octobre.
The local community of Laniel with the assistance of the kayaking community, Volet11 program, the MRC Laniel, and Tembec have spent over $100,000 to enhance the Kipawa river experience with the re-creation of a river walking trail.
Now would be a good time for Public Works to do their share and at the minimum investigate the possibility of creating a paddler and navigable dam to continue to add value to the tourism industry for Laniel.
Imagine enhancing a natural" Disneyland" in northern Qubec creating tourism dollars and local jobs and all by having some foresight. Adding a shute for boats is not that different then when dams added sluices for logs. The money is not in logs anymore but in tourism, so please stop thinking like the engineers who wish to create a proven unsafe bottom flow , automated dam controlled offsite in Montreal to the hydro demands from the USA. Let us keep the American and Quebec and Ontario paddlers coming to Laniel instead of creating a dam that will stop this inflow of tourist dollars. Olympic paddling sites were created specifically for paddlers and cost hundred of millions of dollars. You have it in your power to maintain a unique natural paddling experience. The small investment in catering to the tourism industry in Laniel will be paid back for generations to come. Remember that your decision will affect the next three generations if this new dam lasts as long as the present one.
You have the opportunity to do right. Consult the stakeholders other than engineers, like the paddlers, fishermen, hunters and local businesses who are your real constituants.
This work Les Amis are doing, and especially me as president, is arduous, thankless and time consuming. I consider the issue of Navigability to be our one last stand. If we lose this fight, it will be hard to win any other concerning rivers, we'll lose the Kipawa and have no one to blame but ourselves. We may lose the fight, but it won't be because I didn't do everything I could do.
Please reconsider your statements concerning navigability. I look forward to your response to this matter which I consider quite important and serious.
Pete
FYI: http://www3.sympatico.ca/kayaky/peter.htm
cc Kim Turnbull and Gilles Brasseur
Robert Laporte[/b]
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Peter Karwacki
Guest
subject: Scott Shipley suggests countermeasures
Make them an offer they can't refuse
First of all, I hope that there is some way to go forward without going to court. These fights can be long and difficult and often no one feels like a winner. I would also particularly recommend against attacking anyone’s professional licensure. I think that, often, the best way to go forward is to try and emphasize the positives of these projects in lieu of going the other way.
Secondly, if we know their budget under the current design and whether or not we could offer to take over a part of the project for the same budget. I.E. if they have a scour pad and bank protection that will cost xxx maybe we could create a navigable bypass for the same $$’s. Just a thought.
Lastly, maybe there is a way to sell them on the benefits of these projects in terms of community, economic effect, etc.
--------------------------------------------------------------------------------
Today Mr. Tremblay, by telephone refused accept the video evidence which contradicted his opinion to Mr. Robert Laport Project administrator of the Laniel Dam Refurbishment.
In refusing he said,
" Give it to Mr. Laporte and see if he will give it to me"
Wow.
Our only recourse at this point is to write a letter of complaint concerning both Mr. Laporte and Mr. Tremblay to the Quebec Engineering society.
My latest communication with Kim Turnbull the project officer for our EA is that they now have the Kipawa River DVD entered into the EA registry.
They are consulting with their legal advisors concerning this whole matter of the stamped opinion letter from Mr. Tremblay and our request for documentation concerning injuries at the dam and any internal memos and discussion memorandum.
As I've mentioned, the Kipawa is a last stand, what other river has the history, the heritage and value. Let's draw the line at the Kipawa and fight the good fight
The Syndic, Office of the Syndic
Ordere des ingénieurs du Québec
Windsor Station of Montreal
Suite 350,
1100 de la Gauchetière West,
Montreal, Quebec
H3B 2S2
BY FAX 514-845-7780
Dear Sirs :
Regarding : Professional Conduct of Mr. Pierre Tremblay registration #22603
I am asking the Syndic, the professional body of oversight of Quebec’s Engineers to review a recent case involving Mr. Tremblay.
Mr. Tremblay has issued an opinion while in the employ of Tecsult International for his client, Robert Laporte of Public Works, Goods and Services Canada on the question of Navigability of the Kipawa River at the Dam in Laniel. I’ve attached his letter of Opinion currently filed in the registry of the Environmental Assessment of the Laniel Dam Refurbishment.
I’m sending a copy of the letter I recently forwarded to Mr. Tremblay.
I also have a DVD showing the Kipawa River being safely navigated by canoes, kayaks and rafts during one of the recently held Kipawa River Festivals in Laniel. My colleague Dave Pollard asked Mr. Tremblay if he would be interested in reviewing it and received a flat refusal.
My concern is that Mr. Tremblay has issued an Unqualified Opinion on the navigability of the Kipawa River at the Laniel Dam and used his registration as an engineer in Quebec to add credibility to his opinion the use of which in this case is unethical, and unprofessional.
I’ve asked for a qualifying statement from Mr. Tremblay as a remedial action as you can see from the attached letter which was faxed to him on November 9th, 2005.
Your consideration of this matter is extremely important to members of the whitewater paddling community as Mr. Tremblay’s opinion weighs heavily on the Environmental Screening report which will be issued and reviewed as it will unduly influence the Decision of the Canadian Minister of Transport in granting his approval for the refurbishment of the dam at Laniel without qualifications.
Yours Truly,
Peter Karwacki
1620 Trenholm Lane
Ottawa, Ontario
K4A 4B6
Peter, good to see you keeping up the good work.
If I could just make an appeal to paddlers to NOT mention the dam at Minden as part of this letter writing campaign. Technically, running that dam is illegal. My conversations with OPP officers have led me to believe that "staying under the radar" is the best way to ensure that we can keep running it without threat of prosecution. Including it in the letter writing campaign is pretty high profile.
The General membership of Whitewater Ontario in ratifying the decision of WO's executive has pledged $10,000 to support a Les Amis challenge of the Laniel Dam refurbishment if necessary via judicial Review. The president of WO, Cam McDiarmid is going to ask other provincial paddling associations to anti up matching funds.
They see this as fundamental to the question of recreational use of navigable waterways and they see that the dam at Minden could be affected by the outcome. Further they recognized the long history of NOLAC, and Les Amis and their membership with the activities of Whitewater Ontario.
At Les Amis Special General meeting in Montreal on December 3rd the LES AMIS membership will be asked to help pilot our strategy for the next two to six months.
The contract is now awarded
A contract of 13 406 560 $ for the rebuilding of the Laniel stopping OTTAWA, November 7, 2005 - The honourable Jean-C. Lapierre, Minister for Transport and political lieutenant for Quebec, in the name of honourable Scott Brison, public Minister for Labour and governmental Services, announced today the attribution of a granted contract of 13 406 560 $, following an invitation to tender, with the company David S. Laflamme Construction Inc for the rebuilding of the Laniel stopping, which is located at Laniel (Quebec). Work, which aims at replacing the concrete crest gate and the riprap dam of the stopping, will end in autumn 2007. "By replacing the stopping, the government of Canada ensures the best possible investment for the Canadian taxpayers, declared the Lapierre minister. Public works and governmental Services Canada (TPSGC) took time to examine all the options well, and it held of vast consultations before beginning work of replacement of the stopping. The project will be carried out with a view to the environment and according to the principle of durability. One will collaborate with the community to ensure the good course of the process of repair "the Laniel stopping was established in 1911 by the federal ministry of Public works to allow navigation on the river of Outaouais and the energy production. The stopping controls the discharge of river of Outaouais starting from the Kipawa tank located in Témiscamingue, in Quebec. Even if Public works and governmental Services Canada (TPSGC) ensured the servicing of the stopping, the Ministry carries out the rebuilding of the Laniel stopping to ensure the safety of the neighbouring communities. Before allotting this contract, TPSGC held of the meetings of consultation targeted with members of the community, groups of leisures, First Nations and general public to take care that the concerns of those are taken into account. The Ministry also carried out an environmental evaluation to avoid the effects on the habitat of fish and the abrasion in the sector of work of rebuilding. TPSGC will work with the surrounding municipalities and Hydro-Quebec to take care that measurements necessary to the protection of the people and the goods located at the neighbourhoods of the Kipawa tank, the Gordon brook and the town of Témiscaming are taken during and after the building work. For more information on the projects of markets of the government of Canada, consult www.merx.com, the electronic service of invitations to tender of Canada.
Now the original french:
OTTAWA, le 7 novembre 2005 –
L’honorable Jean-C. Lapierre, ministre des Transports et lieutenant politique pour le Québec, au nom de l’honorable Scott Brison, ministre des Travaux publics et des Services gouvernementaux, a annoncé aujourd’hui l’attribution d’un contrat de 13 406 560 $ octroyé, à la suite d’un appel d’offres, à l’entreprise David S. Laflamme Construction Inc. en vue de la reconstruction du barrage Laniel, qui est situé à Laniel (Québec). Les travaux, qui visent à remplacer l’évacuateur en béton et la digue en enrochement du barrage, prendront fin en automne 2007.
« En remplaçant le barrage, le gouvernement du Canada assure le meilleur investissement possible pour les contribuables canadiens, a déclaré le ministre Lapierre. Travaux Publics et Services gouvernementaux Canada (TPSGC) a pris le temps de bien exa-miner toutes les options, et il a tenu de vastes consultations avant de commencer les travaux de remplacement du barrage. Le projet sera réalisé dans le souci de l’environnement et selon le principe de la durabilité. On collabo-rera avec la collectivité pour assurer le bon déroulement du processus de réfection. »
Le barrage Laniel a été établi en 1911 par le ministère fédéral des Travaux publics pour permettre la navigation sur la rivière des Outaouais et la production d’énergie. Le barrage contrôle le débit de la rivière des Outaouais à partir du réservoir Kipawa situé dans le Témiscamingue, au Québec. Même si Travaux publics et Services gouvernementaux Canada (TPSGC) a assuré l’entretien courant du barrage, le Ministère procède à la reconstruction du barrage Laniel pour assurer la sécurité des collectivités avoisinantes.
Avant d’attribuer ce contrat, TPSGC a tenu des séances de consultation ciblées avec des membres de la collectivité, des groupes de loisirs, des Premières Nations et du grand public pour veiller à ce que les préoccupations de ceux-ci soient prises en compte. Le Ministère a également procédé à une évaluation environnementale pour éviter les répercussions sur l’habitat du poisson et le frai dans le secteur des travaux de reconstruction. TPSGC travaillera avec les municipalités environnantes et Hydro-Québec pour veiller à ce que les mesures nécessaires à la protection des personnes et des biens situés aux alentours du réservoir Kipawa, du ruisseau Gordon et de la ville de Témiscaming soient prises pendant et après les travaux de construction.
Pour plus de renseignements sur les projets de marchés du gouvernement du Canada, consultez www.merx.com, le service électronique d’appels d’offres du Canada.
s it worth it to carry on? Good question. Les Amis will have to figure out how to balance the $ and time output for maintaining the runnability of an artificial drop on a river with lots of great natural drops. I would like it to stay runnable, but there may be other fights to fight.
The question now rests with paddling clubs, groups, associations, civil activists, and their ilk who must anti up in terms of cash support.
For the record, I could get no support in cash from the Sierra Club or the Sierra Legal Defense Fund. Elizabeth May, order of Canada, would not return my mail or phone calls.
FQCKEV has no money. The AWA has their own problems. The Mayor of Laniel, just wants the project to get started.
But Whitewater Ontario has pledged $10,000 in support... not enough.
So...
Here we have past practice and a right accummulated over 20 years with a record of safety by recreational users.
We have a government averse to excess liability coupled with a stubborn bureaucracy, tight lipped and uncooperative.
We have closed minded participants with irreconcilable differences.
Les Amis will meet December 3 in Montreal, and decide whether or not to file for judicial review. Our case is strong, none better for recreational users of navigable waterways in recent history. And our cause is just.
The result, creation of jurisprudence, the basis of our legal system, would affect so many other future cases preserving the right of Canadians to paddle navigable waterways and not simply "walk around". Now is the time to act but, as I've always said, Canadians deserve what they get.
So I ask you all, is it worth it?
Pete
If you have oblique or other contacts with benevolent organizations or individuals consider making an appeal on our behalf.
Here is a sample pitch. (also don't forget our special meeting in Montreal December 3rd , 10:00 AM 6925 Rue Lacroix
Would this issue be of any interest to the your organization?
The river preservation group, Les Amis de la Riviere Kipawa wants to preserve the public's long standing right to navigate the Kipawa River at the Laniel Dam but the really big issue is the fundamental right of canadians to navigate our lakes and rivers and the applicability of the Navigable Waters Protection act for recreational use, and the need for third party mediation in the environmental assessment process.
See
www.kipawariver.ca
And for more detailed information:
http://www3.sympatico.ca/kayaky/NOLAC.htm
We've already raised about $18,000 for a judicial review in Federal Court which includes $10,000 from Whitewater Ontario. Just recently the Canadian Minister of Transport has issued his approval for the refurbishment of the Laniel dam which includes a design which is not navigable. PWGSC, dam owner/operator does not want anybody navigating the river through the dam at Laniel. An Environmental Screening report has been issued and the mitigation to paddlers has been identified by the bureaucrats as "walk around" in spite of 40 years of safe navigation of the Kipawa River at the dam by raft, kayak and canoe.
The rationale: excessive liability to the crown.
We think that the Minister of Transport's decision should be sent to judicial review with reference to his responsibility under the Navigable Waters Protection Act to maintain the right of Canadians to Navigate the Kipawa river and review the rather slanted environmental review done by PWGSC on its own project.
We need some cash, legal advice and moral support. Interested?
People ask Me, "So what can I/we do?"
--------------------------------------------------------------------------------
People often ask me what they can do to help the cause of Les Amis and of the Kipawa.
Here are some suggestions:
Pete
1: Make a personal appeal for financing for the Judicial Review of the Minister of Transport's project approval:
Would this issue be of any interest to thyour organization? The river preservation group, Les Amis de la Riviere Kipawa wants to preserve the public's long standing right to navigate the Kipawa River at the Laniel Dam but the really big issue is the fundamental right of canadians to navigate our lakes and rivers and the applicability of the Navigable Waters Protection act for recreational use, and the need for third party mediation in the environmental assessment process.
See
www.kipawariver.ca
And for more detailed information:
http://www3.sympatico.ca/kayaky/NOLAC.htm
We've already raised about $18,000 for a judicial review in Federal Court which includes $10,000 from Whitewater Ontario. Just recently the Canadian Minister of Transport has issued his approval for the refurbishment of the Laniel dam which includes a design which is not navigable. PWGSC, dam owner/operator does not want anybody navigating the river through the dam at Laniel. An Environmental Screening report has been issued and the mitigation to paddlers has been identified by the bureaucrats as "walk around" in spite of 40 years of safe navigation of the Kipawa River at the dam by raft, kayak and canoe.
The rationale: excessive liability to the crown.
We think that the Minister of Transport's decision should be sent to judicial review with reference to his responsibility under the Navigable Waters Protection Act to maintain the right of Canadians to Navigate the Kipawa river and review the rather slanted environmental review done by PWGSC on its own project.
We need some cash, legal advice and moral support. Interested?
2: Other activities
The best thing paddlers can do to help the cause of the Kipawa:
1. attend the rally and bring others including non paddlers to attend and buy beer and have fun
2. write your MP /MNA and raise the issue and post your objections -1 letter = 200 who didn't write
3. Write Thierry Vandal the CEO of Hydro Quebec strongly opposing the 132 MW standard decrying the use of "diversion" as the most environmentally
inappropriate method of power production
4. Write Jean Charest, Premier of Quebec protesting that either the algonquin or the tabaret project will eliminate all other values on the Kipawa River by turning it into a dry gulch.
5. See if you can get other allied groups interested by showing your own interest, ie the Sierra Defense Fund, Earthwild, MEC, and so on.
6. Demand further consultation
7. Currently we are at the point where we need to sway public opinion and raise awareness. We may launch a Writ of Mandamus action against the Minister of Transport to get the court to require him to rule that the Kipawa is navigable and such navigability must be protected, under the Navigable Waters Protection Act. However, if all else fails, don't get mad, simply disrupt, foment, and protest. Have you read "the monkey wrench gang" by Edward Abbey?
8.Action Alert: Help preserve recreational opportunities on the Kipawa: Laniel Dam Refurbishment threatens the "Dam" run.
While Hydro Quebec continues to be a threat to paddling opportunities enjoyed by boaters from Canada and the US. We have reached a major decision point with the Tabaret project and have an opportunity to kill a hydro proposal that threatens one of the finest whitewater resources in Eastern North America.
A key initiative in this strategy is to ensure that the Kipawa River remains naviable at the Laniel Dam. We want to keep that water flowing through there.
This run is a classic road trip destination that is enjoyed by paddlers from around the world, has been featured in kayaking films, and has sections suitable for intermediate paddlers. It is a true classic. This action alert comes to us from Peter Karwacki, a well-known environmentalist and river protection advocate. Letters to the individuals listed below would be a significant help in documenting recreational interest in this river (if you can send e-mails now, then send hard copies later, that would be the best thing). Quick action now will preserve this incredible whitewater resource for future generations. The Kipawa has been featured in whitewater videos, and is a FANTASTIC whitewater resource.
Note:
Navigability Definition
Navigability The determination of whether or not a waterway is actually considered navigable rests solely with the Minister or his/her designated representative. For the convenience of applicants the following administrative definition is provided:
Navigable Waters include 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 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.
I have been working to convince the Navigable Waters Protection Division (NWPD) that we need to have Kipawa River, Laniel Quebec saved as one of the places we do not want to see ANY diversion projects.
We need some IMMEDIATE help with this effort.
We needed the NWPD to attempt to go to bat for the paddlers and say NO. BUT they need as much ammunition as we can provide them, to be able to do so. We have already identified the Kipawa as one of the top rivers in the area. Right now the big-business Quebec Hydro is pressing them. PWGSC is already talking to "others" about divestiture of the refurbished Laniel Dam. Imagine Hydro Quebec as the new owner, able to control the water flow for a more perfect diversion of the Kipawa River!
PLEASE do the following :
Write a letter that outlines your concerns regarding the Kipawa - there is some information at the bottom to assist you in doing so.
Send the letter to the following people - this does not need to be a work of art, or any sort of redneck efforts at bashing the government or the proponent. We need to clearly state some of the key things at the bottom of the page. Please Blind Carbon Copy (BCC) me with your responses.
Get your club to write a letter as well.
We also need letters to the editor, and articles in our local papers.
E-mail the letter to each person individually, and mail them individually to the people below. Try to put your own spin on the words below. YES - this is work, but we have clear indications that this thing can be stopped, if we act together, and act soon. You can be a part of saving this stream - for now and for the future.
Some things that make the Kipawa a spectacular river worth saving as it is:
easy road access to a number of spectacular paddling runs
an incredibly long season
varied opportunities for various skill levels there are easy intermediate runs there are challenging more difficult runs
this is a place you can paddle at any time
the Kipawa has beautiful clear water amazing bedrock exposures, and incredible bank foliage aesthetics that are unmatched by any stream in this area
paddling reaches that are entirely runnable
short portages for those that wish to do the runs without doing the hardest drops
fantastic well-defined features easy access off paved roads
a world-class paddling destination that
you do not want more power lines in the Kipawa River area.
that YOU want a free flowing river. To make your point to local council, also emphasize:
You live and work in this area or you chose this area for whitewater recreation because it is the Outdoor Recreation Capital of Canada - and the Kipawa is a supporting player in the town of Laniel claiming this, that local business depends on recreational draws to this area if applicable that you earn your living in this area from recreational interests - particularly whitewater that you come to this area to recreate because of the opportunities that streams such as the Kipawa offer
The NWPD, and Natural Resources Quebec need to hear this. More importantly you need to tell the Temiskaming MRC.
With the recent call for even more of these projects, it is becoming more important to look to the preservation of some of the finest streams. You need not put forward any earth-shattering points, stay for the entire meeting, or endure long presentations. Come forward and be recognized, and then provide your input (counted as a vote) in opposition to the project. It is key that everyone come, stand up and be counted.
Please circulate this, and encourage everyone to come forward and put forward their opposition to Tabaret and the reconfigured Laniel Dam project which threatens the DAM run. The proponent, Hydro Quebec and PWGSC will be working to have as many people as possible come forward and support the project.
Transport Canada
Quebec Region Regional Superintendent Navigable Waters Protection Transport Canada 101 Champlain Blvd, 3rd Floor Quebec, QC G1K 7Y7 Phone: (418) 648-4549 Fax: (418) 648-7640 Website: http://www.marinfo.gc.ca/en/Services/ppen_loi.asp
Headquarters
Transport Canada 330 Sparks Street Ottawa, ON K1A 0N5 Tel: 613-990-2309 Fax: 613-954-4731 or 613-998-8620 TTY: 1-888-675-6863 Website: http://www.tc.gc.ca
Manager Navigable Waters Protection Marine Safety Transport Canada Tower C, Place de Ville 330 Sparks Street Ottawa, ON K1A 0N8 Phone: 613-990-5929 Fax: 613-998-0637 Website: http://www.tc.gc.ca/marinesafety/Ships-and-operations-standards/nwp
Members of the Temiskaming MRC
villebelleterre@hotmail.com; mun.fug@sympatico.ca; mun.guerin@sympatico.ca; municipalite.laniel@sympatico.ca; muni.latulipe@sympatico.ca; municipalite.laverlochere@sympatico.ca; municipalite.lorrainville@cablevision.qc.ca; munmoffet@sympatico.ca; mrc@mrctemiscamingue.qc.ca; municipalitenedelec@sympatico.ca; municipalitendn@sympatico.ca; mun_remigny@temiscamingue.net; mun.st-bruno-de-guigues@cablevision.qc.ca; municipalitefabre@cablevision.qc.ca; mun.st-eugenes@sympatico.ca; tedraper@sympatico.ca; admintem@vianet.on.ca; vvm.dgst@cablevision.qc.ca; mun.bearn@cablevision.qc.ca
Laniel Municipal contacts
(819) 634-3123 (819) 634-2629 municipalite.laniel@sympatico.ca
Society for the development of temiskaming
Nom Fonction #poste Courriel Aumond Joëlle Agente de suivi 41 joellea_sdt@temiscamingue.net Beaulé Joëlle Agente administrative 22 joelleb_sdt@temiscamingue.net Beauregard Adèle Directrice développement des entreprises 31 adeleb_sdt@temiscamingue.net Beauregard Aline Agente à la direction 21 alineb_sdt@temiscamingue.net Bellehumeur Nadia Conseillère développement des collectivités 24 nadiab_sdt@temiscamingue.net Brunet Beaudry Ann Conseillère développement des entreprises 25 annbb_sdt@temiscamingue.net Falardeau Johane Agente développement Internet 26 webmaster@temiscamingue.net Lamarche Stéphanie Conseillère tourisme 29 stephaniel_sdt@temiscamingue.net Landry Hélène Conseillère en plein air 49 helenel_sdt@temiscamingue.net Lessard Monique Agente de développement en économie sociale 32 moniquel_sdt@temiscamingue.net Lessard Nancy Conseiller financier 23 nancyl_sdt@temiscamingue.net Rannou Josée Directrice au financement 30 joseer_sdt@temiscamingue.net Richer Josiane Agente développement agroalimentaire 51 josianer_sdt@temiscamingue.net St-Pierre Christine Agente de développement aux entreprises et jeunesse 27 christines_sdt@temiscamingue.net Trépanier Guy Directeur général 28 guyt_sdt@temiscamingue.net
Other Important Addresses
Thierry Vandal, CEO,Hydro Québec, 75 boul René Levesque, Montreal, P.Q., H2Z 1A4
Caille.andre@hydro.qc.ca
Minister of Transport
Parliament Hill:
House of Commons
Ottawa, Ontario
K1A 0A6
Telephone: (613) 995-7691
Fax: (613) 995-0114
E-Mail: Lapierre.J@parl.gc.ca
Department:
Transport Canada
Place de Ville, Tower C, 29th Floor 330 Sparks Street
Ottawa, Ontario
K1A 0N5
Telephone: (613) 991-0700
Fax: (613) 995-0327
E-Mail: mintc@tc.gc.ca
Superintendent
Navigable Waters Protection Program
3rd floor, 901 Cap Diamant
Gare Maritime Champlain
Quebec Qc.
G1K 4K1
Phone (418) 648-5403
Internet demersm@tc.gc.ca
Julie Rousseau
Responsable du Répertoire des barrages
Centre d'Expertise Hydrique du Québec
Direction de la sécurité des barrages
Téléphone: (418) 643-6666 poste 231
Télécopieur: (418) 643-4609
Courrier: julie.rousseau@menv.gouv.qc.ca
http://www.cehq.gouv.qc.ca/
Le Citoyen Rouyn-Noranda, Rouyn-Noranda
819.762-4361 - 819.797.2450 fax
courriel : quebecor@cablevision.qc.ca
La Frontière, Rouyn-Noranda
819.762.4361 - 819.797.2450 fax
courriel : La Frontière, Rouyn-Noranda - quebecor@cablevision.qc.ca
Please let me know if you need any more information.
Sincerely
Peter Karwacki
Les Amis de la Riviere Kipawa Phone/Fax:(807-468-2810 E-mail:kayaky@hotmail.com
UPDATE: Ottawa River Runners Support Les Amis!
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The membership of ORR at their AGM last night, held in Ottawa approved the efforts of Les Amis to fight for the access and navigation rights of recreational paddlers.
Their initial donation towards the judicial review case was set at $200.
Here is a note concerning judicial review:
The filing cost is only $50.
The application as it is call, must be filed with the Federal Court Registry within 30 days of notification of the approval of the project. The contract, see above threads, was announced November 7th.
I've asked Ministry of Transport, officials and they are not forthcoming. Osbaldson said, " I don't have the file, you have to speak to Demers".
Just great.
Lips are tighter than a fly's ass in august with the sole intent of defeating us.
Alas we persevere.
Posted: Tue Nov 29, 2005 12:18 pm
Post subject: Ordre of Engineers of Quebec confirms receipt of request
--------------------------------------------------------------------------------
In their letter me to I have confirmation that the Order of Engineers of Quebec is currently reviewing my request for oversight of Mr. Tremblay's opinionn letter to Mr. Laporte.
The next step would be the launch of an inquiry, a high powered process, but this would only occur if they felt the complaint had merit.
Les Amis Membership Presses for Mediation
--------------------------------------------------------------------------------
At the special meeting of Les Amis on Montreal we considered our options regarding the Judicial Review.
The main point is that the Minister of Transport's decision can only be appealed based on its
1. reasonableness
2. fairness of process
3. unbiased nature
Our case is straightforward, to us, but the governement lawyers will block us at every step, bogging the case down in procedural motions (did the right party get served, is the issue arguable, were the right documents legally files... And so on) each one requiring the intervention of an expensive lawyer.
This means that a case the should only cost $30,000 could cost a lot more.
We know we have a good, and interesting case, and these things don't come up that often. Our moves would benefit all paddling groups but we need them to come forward with funding. Charitiable donations could be funneled through a operation like the Sierra Club or even the Canadian Environmental Action group.
For now we've asked our lawyer to write a letter, identifying the key points of our case, and asking for mediation. Our financial position is not yet finalized to go further than this.
The other thing is that there is no government and won't be until January 23rd or a bit later with the cabinet appointments. Its like limbo.
Most importantly, we've discovered that there are no approvals yet, not for the EA, and not for the refurbishment. Laflamme construction would put themselves in legal jeopardy if they proceed to work without it.
We were concerned about whether or not we had to meet a 30 day time limit from the announcement of the contract to Laflamme on November 7th which have only given us til Wednesday to file. In fact, because MOT may approve "the project" retroactively we could probably be reasonably justified to file our concerns because the issues would not change. But the membership has asked that we try yet again for mediation for the benefit of the government and for us.
Still the Notice of Motion is being refined to mesh with fine points of law. We'll be ready to use it if we must.
Our AGM will be in Montreal on February 4th, at a location to be finalized.
We have this most recent communication from the MOT's office: Dated December 5th for a project awarded November 7th and announced by the Minister of Transport himself on behalf of Scott Brison Minister of PWGSC.
You all figure it out with regard to due process, fairness, reasonableness?
Dear Mr. Karwacki:
On behalf of the Honourable Jean-C. Lapierre, Minister of Transport, I am writing in response to your e-mail of October 31, 2005, which was further to our previous exchanges of correspondence regarding the Laniel Dam on the Kipawa River.
Minister Lapierre has noted your concerns and your willingness to meet to further discuss the Laniel Dam project. As you know, Transport Canada is indeed a Responsible Authority for this project under the Canadian Environmental Assessment Act (CEAA). The department is collaborating with Public Works and Government Services Canada, the project proponent, to ensure that the environmental assessment considers the measures necessary to mitigate the environmental effects of the project.
Transport Canada, Fisheries and Oceans Canada and Public Works and Government Services Canada, the Responsible Authorities for this project, selected screening as the type of environmental assessment to be performed. As you are aware, screening takes into account public comments, such as those you have expressed. I should note that, in this regard, the screening report is not yet finalized. As per Transport Canada's responsibilities under the Navigable Waters Protection Act and the CEAA, the department is still studying the environmental impacts of this project.
Transport Canada appreciates your continued interest in this project. Thank you for writing.
Yours sincerely,
Karine G. Cousineau
Senior Quebec Assistant
the right hand and the left hand are not acquainted
--------------------------------------------------------------------------------
Mr. Karwacki - once again, you are speaking of concerns
surrounding specific operationial project files within the
Province of Quebec which are managed entirely by our Quebec
Office. I have no knowledge of the project to which Ms.
Cousineau refers nor as to whether or not her interpretation of
the events surrounding the project is, in fact, correct.
Again, I refer you to our Quebec Regional Office regarding
answers to these project-specific concerns.
David J. Osbaldeston
National Manager
Navigable Waters Protection Program
Marine Safety, Tower 'C', Place de Ville
330 Sparks Street, 10th Floor, Suite 1055
Ottawa (Ontario) K1A 0N8
Telephone: (613) 990-5929
Fax: (613) 998-0637
Cell: (613) 297-1574
e-mail: osbaldd@tc.gc.ca
NWPP Approval - Process
David J. Osbaldeston
National Manager
Navigable Waters Protection Program
Marine Safety, Tower 'C', Place de Ville
330 Sparks Street, 10th Floor, Suite 1055
Ottawa (Ontario) K1A 0N8
Telephone: (613) 990-5929
Fax: (613) 998-0637
Cell: (613) 297-1574
e-mail: osbaldd@tc.gc.ca
Much appreciated. In that case let me phrase my questions in a
more general
way.
I learned yesterday, from Karine Cousineau, the past Minister
of
Transport's chief Quebec Assistant that in one certain project,
its
applicable EA was not finalized, that the project was not yet
not approved
under 5(1)a, and yet the Minister of Transport himself announced
the
awarding of the contract prior to its approval, and in doing so
said he was
doing it on behalf of the Minister of PWGSC.
In this regard, don't you think that any reasonable person under
the
circumstances might assume the Minster, in announcing the
awarding of a
contract, was approving it as well since he is the Minister that
is
authorized to approve the project?
Would this be considered standard practice within the Ministry
of Transport?
Is it not true that a company would be in violation of the NWPA
if they
started working on a project without the necessary 5(1)a (NWPA)
approval?
Wouldn't that put the legitmacy of your approval processes into
question?
I would welcome the opportunity to meet with you to discuss this
issues
further since the application of general rules as they apply to
my specific
case is of great interest, especially since you are in Ottawa
and Mr. Demers
is in Quebec City.
You all be the judge
--------------------------------------------------------------------------------
Since at the present time there is no court case, you all be the judge as to whether the process is fair, and reasonable and unbiased.
Also while you are at it consider whether all the relevant facts have been considered, and the mitigation proposed is reasonable and fair under the circumstances.
Consider that there is an election and that you all might question your own future Ministers of parliament: Ask the following question:
I am interested in hearing each of your opinions on the Navigable Waters Protection Act. This is a piece of federal legislation that is supposed to guarantee the rights of Canadians to navigate our waterways.
Currently the federal government is attempting to replace an existing dam on the Kipawa river at Laniel Quebec. The current dam is navigable and has been used commercially and recreationally for over 20 years. The proposed replacement structure will not be navigable and the mitigation measure proposed is that paddlers will have to WALK AROUND. This mitigation measure is simply NOT ACCEPTABLE. If navigability of the dam can be maintained, then so can navigability of the entire river. I am not opposed to the replacement of the existing dam I just want to ensure that the new structure will retain the navigability of the existing one.
For more information I urge you to visit
www.kipawariver.ca
And for more detailed information:
http://www3.sympatico.ca/kayaky/NOLAC.htm
The Kipawa River and Laniel dam is one facet, yet a pressing one, of this issue. Currently the Ontario Ministry of Natural Resources is accepting proposals for the development of a full-range of waterpower opportunities on Crown land, from small-scale development up to and including large commercial developments. These developments have the ability to further effect the navigability of Canada’s and Ontario’s waterways.
A response to this email would be appreciated as I, and other like minded voters in this riding, view this issue as one of great importance.
Thanks for your time.
A Note on Access to Information
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$5.00 and a good question.
2005 12 05
George Steeves
Access to Information Officer
ph 956-2666
fax 819-994-2119
Dear Mr. Steeves.
Further to your request to me today for clarification:
Please give me the date that PWGSC received approval from the Minister of Transport under section 5(1)a of the Navigable Waters Protection Act for its Laniel Dam Refurbishment contract and any conditions that were attached to that approval.
That contract was awarded by PWGSC, and it was announced by the Minister of Transport on November 7th, it must be approved under 5(1)a, correct?
For your further information:
Peter Karwacki
1620 Trenholm Lane
Ottawa, Ontario
K4A 4B6
Its hard to find approvals which don't actually exist.
David S. Laflamme Inc of Stittsville, Ontario is the construction firm awarded the contract.
He writes:
Mr. Karwacki;
We are in receipt of your e-mail of December 5, 2005. Please direct all inquiries or concerns to the Project Manager, Mr. Robert Laporte P.Eng at tel # (819) 956-7369
Thank you
David S. Laflamme
President
This is the last correspondence I have had from Mr. Laporte:
Dated June 29th
Comme mentionné lors de la consultation publique, il est strictement défendu de descendre le barrage. Les affiches et l'estacade en font preuve.
Robert Laporte
TPSGC
But the signs were only recently put up, after we asked for them. This fellow has been no help at all but he is the project administrator. Give him a call.
LAPIERRE ANNOUNCEMENT BUT NO APPROVAL - How can that be?
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Mr. Peter Karwacki
President
Les Amis de la Rivière Kipawa
Peter.Karwacki@cognos.com
Dear Mr. Karwacki:
On behalf of the Honourable Jean-C. Lapierre, Minister of Transport, I am writing in response to your e-mails of November 29 and 30, 2005, which were further to a previous exchange of correspondence with this office regarding the refurbishment of the Laniel Dam.
As you know, Transport Canada is currently reviewing this proposed project. In accordance with the Navigable Waters Protection Act (NWPA), the proponent of a project must complete the following steps:
* complete and sign a letter of application and provide supporting information, including environmental assessment information;
* submit a letter of application with the required number of copies of the plans;
* deposit a full set of plans and supporting documentation at the Land Registry office that has jurisdiction over the proposed work site; and
* advertise the work in the legal section of two local newspapers and in the Canada Gazette, Part I.
Please be assured that Transport Canada has not yet issued the approval under the NWPA for the proposed Laniel Dam project. Once the department receives proof of the publications from the proponent, it will review the comments received before making a decision on the project. I should note that the proponent is expected to publish its proposal in the Canada Gazette, Part I, in the near future.
I trust that the foregoing will be of assistance. Thank you for writing.
Yours sincerely,
Leslie Swartman
Chief of Staff
Commentary:
Lapierre Announced the project back on November 7th, saying he was speaking for Scott Brison minister responsible for the project.
I've asked "Is it normal procedure to for the approving minister to announce a project he has yet to approve?, on a design that has yet to be approved?"
------------------------
The current election has left things up in the air.
New Ministers of Transport, PWGSC, Environment and Fisheries may be elected January 23rd at which time Les Amis will attempt to establish communications with the new cabinet members.
I would encourage you all to ask your potential members about the issue of access to whitewater resources. It is the NWPA that allows the Minister of Transport to approve obstructions to navigable waterways or impose conditions for such an approval such as reasonable accommodation.
In so doing the Minister of Transport could approve obstructions to all of our whitewater paddling resources. Its still early in the 21st century. Some might argue, for example, that Quebec Hydro has a plan for every drop of water that runs downhill in Quebec! Our thirst for electric power grows.
There has never been a better time to become politically active. Its up to all of us to work hard to secure our national heritage. Once the dams, diversions, bridges, weirs and other sundry structures are built it will be too late.
Peter
PLANS HAVE BEEN DEPOSITED
--------------------------------------------------------------------------------
The plans have been deposited in the Canada Gazette.
Posted by our "friend" and fellow paddler
GILLES BRASSEUR of PWGSC Gilles.Brasseur@pwgsc.gc.ca
4156 Canada Gazette Part I December 17, 2005
Vol. 139, No. 51
The nameless boffs of glass and steel have not atoned, rather they proceed with singular manical obsession: only to be counteracted by the paddling community.
Note:
In accordance with the Navigable Waters Protection Act (NWPA), the proponent of a project must complete the following steps:
* complete and sign a letter of application and provide supporting information, including environmental assessment information;
* submit a letter of application with the required number of copies of the plans;
* deposit a full set of plans and supporting documentation at the Land Registry office that has jurisdiction over the proposed work site; and
* advertise the work in the legal section of two local newspapers and in the Canada Gazette, Part I.
DEPARTMENT OF PUBLIC WORKS AND
GOVERNMENT SERVICES
PLANS DEPOSITED
The Department of Public Works and Government Services
hereby gives notice that an application has been made to the
Minister of Transport under the Navigable Waters Protection Act
for approval of the plans and site of the work described herein.
Under section 9 of the said Act, the Department of Public Works
and Government Services has deposited with the Minister of
Transport and in the office of the District Registrar of the Land
Registry District of Témiscamingue, at Ville-Marie, Quebec, under
deposit No. 12 922 790, a description of the site and plans of
a dam with four gates and one spillway crest, a boom upstream of
the dam, retaining walls and an abutment on the left bank, as well
as temporary structures being coffer dams (upstream and downstream
of the dam), berlin walls and sheet pile walls, in Kipawa
Lake and in the Kipawa River, at Laniel, Quebec. The work is
located at Lot C-1 of Block C, Block 4, Lot 30-11B-1; in part of
Lot 30-11B and part of Lot 30A of Range 8 of the geographic
township; and in part of Block C, part of the bed of the Kipawa
River and part of the bed of Kipawa Lake, located within the geographic
township of Mazenod.
Comments regarding the effect of this work on marine navigation
may be directed to the Superintendent, Navigable Waters
Protection Program, Transport Canada, 901 Du Cap-Diamant
Street, Suite 310, Québec, Quebec G1K 4K1. However, comments
will be considered only if they are in writing and are received
not later than 30 days after the date of publication of this
notice. Although all comments conforming to the above will be
considered, no individual response will be sent.
Quebec's Engineering Syndicat Reviews Complaint
--------------------------------------------------------------------------------
I have confirmation from the Syndicate that they are reviewing this case. The matter has been assigned for inquiry.
See threads above concerning Engineer's letter.
UPDATE: 2007 03 15 as of this date they have not even commenced.
PWGSC has no approval - NWPA is like 1984 "war is peace
--------------------------------------------------------------------------------
Following my request under the Access to Information Act I was told that PWGSC did not have any approval from the Minister of Transport to proceed with their project. "No such document exists" was the official reply.
But under the Navigable Waters Protection Act, retroactive approval is possible. There is jeopardy to the project proponent because if approval was not forthcoming they might have to remove their "obstruction".
But here we have the Minister of Transport, a liberal, Mr. Lapierre, announcing a project, that he has not approved - a blatant disregard for due process, bending the rules. A very liberal thing to do.
The NWPA is designed for the Minister of Transport allow obstructions to navigation which is a bizarre effect of an act named to protect Navigable Waters.
Paddlers must be actively contacting their members of parliament and insisting that the Kipawa be Preserved. Today the Kipawa is at stake but tomorrow it could easily be the Ottawa, the madawaska, or any other recreationally navigable waters. We must insist that our access to our rivers, lakes and streams is maintained and defended by the ministry of Transport, and that obstructions be installed only with satisfactory mitigation of the environmental impacts on recreactional boaters.
Peter
2006 03 03 - Investigation is not complete
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I received a letter from the Quebec Syndicat.
As of today, this investigation is not complete, however, they fully intend on investigating how the engineer could proclaim the river was not navigable, thereby affecting the EA, without properly considering the evidence well available that it had been safely navigated for 40 years.
Federal court file number File Number is T-452-06
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File Number is T-452-06
Quebec Syndicat advises inquiry has not yet started
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The engineer inquiring into that opinion by PRTremblay, who expressed a professional opinion TO PWGSC that the Kipawa was not navigable no matter what type of craft has not yet begun. It has been deferred due to work issues.
At the last Kipawa rally we discovered that not only was the sluice at the dam navigable before construction, it was also navigable during construction of the northside gates. Of course the kayakers had to roll over, slip under that blasted snowfence, roll back up, and then run the sluice.
I suppose the syndicat must advise me monthly as this is the third such letter I have received.
I sincerely hope that the deferral is only related to how busy the investigating engineer must be and nothing else. Anyway, this is not a dead issue.
The question: should an engineer voice an opinion, stamped with his engineering number, on a matter which is outside the scope of his professional training? In anycase, What tests were done? water depth, channel width, speed of current, approach, downstreamn conditions?
or was he simply blowing smoke?
what exactly? because using the engineer's stamp is a serious business. For sure, questioning its use is also a serious business, but I've done it because it threatens the historical use of the sluice on the Kipawa, and has been seriously considered in the PWGSC self assessment/environmental assessment.
The effects of Dam Refurbishment
--------------------------------------------------------------------------------
I have a photograph of the Kipawa at Broken Bridge Rapid dramatically showing the effects of reduced flow on the rapid.
Another photograph shows the maniacal installation of snowfencing above the laniel dam.
The two images juxtaposed paint a horrible picture of environmental assessment gone terribly wrong.
If this is the shape of greening of the environment that PWGSC has in mind, God help us all.
"There's something happening here... what it is ain't exactly clear
There's a man with a gun over there, telling me I got to beware...
You've got to stop now, and look around, everybody look what's going down!"
Buffulo Springfield
1st. Kipawa at Broken Bridge, after the new more "efficient" stoppage of water flow
2nd. Kipawa River, with snowfence above the Laniel Dam Sluice, and galvanized fencing, treacherous portage created on River left
3rd. Sadia Loney running that glorious sluice in better days. Safely and happily.
DAM REFURBISHMENT + PWGSC + P.Q = TABARET!!!!!
The recent announcement by PWGSC minister Fortin about tranferring the Laniel Dam to the Province of Quebec takes us one step closer to the divestment of the dam to Hydro Quebec for its ill conceived TABARET project.
The public is asked to write the Ministry of the Environment to veto any such tranfer subject to a full blown environmental assessment including open and public hearings... in both official languages.
refer to the cnn mathews newswire for "complete" as in as complete as PWGSC would like us to have, coverage:
http://www.ccnmatthews.com/news/releases/search_comp2.jsp?compid=11062&pagesize=25&interval=
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ENGINEERS LETTER: still no investigation: what's it been?1yr
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Its been about a year since the TECSULT engineer issued his stamped opinion to PWGSC officials saying that the sluice at the dam on the Kipawa was not navigable by any craft no matter what type.
That sticky wicket is still sticking as the SYNDICAT of Engineers in Quebec still has not begun the inquiry though on engineer has been assigned to that task its been about a year and nothing.
The argument?
The opinion of the engineer was based on ignorance, and fear of the unknown, not hard facts or investigation, which in my opinion, was unprofession and unwarranted. Adding an engineers stamp adds a level of professional credibility that was injurious to the Environmental Assessment that was ongoing at the time and heavily weighed upon by the PWGSC officials.
At the last rally, kayakers rolled upside down, slipped under the cross river snow fence, rolled up and ran the sluice ... as safely as such a manoever would allow.
More kayakers were injured walking the portage around the dam, given the unstable rock embankment.
No injuries at the dam slucie, a perfect track record at the Laniel dam for the past 20 years in spite of the the safety arguments by PWGSC to try and disallow navigation contrary to the navigable waters protection act. They finally had to turn the water off even thought PWGSC officials were on recording saying they would not alter the flow patterns at the dam.
Action: as usual urgent action is required: letters should be sent to
Pierre R. Tremblay, Director de projet (Quebec 22603)
Tecsult International Ltd (TIL)
Street 85 St. Catherine Street West
City Montréal, QC H2X 3P4
Country Canada
Telephone (+1) 514 - 287 85 00
Facsimile (+1) 514 - 287 86 30
E-Mail webmestre@tecsult.com
Internet www.tecsult.com
Dear Mr. Tremblay,
RE:Letter to R. Laport dated June 15, Ref: 0513337-3000
Further to my telephone discussion with you I must ask your indulgence. Your letter to the Mr. Laporte forms the basis for the argument in the Environmental Assessment of the Laniel Dam Refurbishment that the dam is not safe for navigation. I take strong exception to your position.
You may now be aware that in complete opposition to your statement to Mr. Laporte, "Ces conditions ne permettent pas le passage sécuritare d'embarcations quelles qu'en soit le type" kayaks, rafts and canoes have been navigating the Kipawa River at the location of the Laniel dam since 1967 and specifically for the last 19 years of the Kipawa River Rally, held each June in which hundreds of persons have engaged safely in this activity.
I think it would be fair to issue a qualification to your remarks. They aren't based on anything except ignorance or fear of the unknown. Mind you, I don't say that everyone should engage in this activity either, but to say it is unsafe for everyone is absolutely false.
We have a right of navigation of the Kipawa River through a period of longstanding regardless of your opinion and the recreation paddling community will work hard to preserve it including filing a formal complaint to the engineering society unless you qualify your opinion to reflect the reality of the situation. You should at least consult the views of experts in whitewater recreation safety and I can arrange to give you that information.
Here is one example:
Gary Lacy, P.E.
Scott Shipley, Engineer
Recreation Engineering and Planning
485 Arapahoe Ave
Boulder, CO, 80302
(303) 545-5883
(303) 819-3985 (Scott Cell)
http://www.wwparks.com/
Mr. Tremblay, there is much at stake here.
I wanted to try and explain the Navigability issue a bit further.
The Navigable Water's Protection Act is drafted to protect the public's right to navigate our waterways. The navigability of the dam at Laniel is a matter of fact and a matter of law. It has been used commercially (rafts) and recreactionally safely for over 20 years. If navigability of the dam can be maintained, then so can navigability of the entire river since that is where the water is coming from.
We don't want to wait until the water is turned off (diverted) to act. Actually what we want to do is bump up the issue of navigability of the dam to the level of a Federal Court Action to raise general awareness of the issues surrounding the Kipawa. Tabaret and Energex projects are still looming in the wings, in fact the Quebec Government is poised to announce its ruling on Tabaret. These are diversion projects.
Man made structures like dams are navigated at Laniel, Minden, the Magnetawan, the Achigan and Bonnybrook in Quebec,the Moose River in New York, I believe, also one on the St. Lawrence at Long Sault. Its not a new thing, but it is a right of Canadians, part of our national heritage. If we give up that right, without even a whimper it won't be easily won back.
I appreciate your feedback on this issue because ultimately we'll need to address concerns like those you've expressed and we have to raise funds to pay for the court action. I estimate it cost as much as $30,000 to fund the court action which is a Judicial Review of the Transport Minister's Decision and Writ of Mandamus requiring the Minister of Transport to enforce the act to preserve navigability.
See the following past action: lost but instructive: http://decisions.fct-cf.gc.ca/fct/2002/2002fct421.shtml
Humber Environmental Action Group and Minster of Fisheries and Oceans.
In that case the judge ruled:
"And at paragraph 93:
I therefore conclude that the record as it stands does not allow the Court to conclude that the primary condition for the Navigable Waters Protection Act, supra, to apply, that is, the navigability of the Eastmain River, has been established. The Minister of Transport could not exercise any decision-making power which would trigger the application of the Order before being persuaded of the navigability of the watercourse."
The current design for the redesigned dam at Laniel has a top release spillway on the south gate much like the current, except it also has a spillway, a rounded hump which accorting to Scott Shipley, a whitewater design engineer from boulder Colorado does not conform to contemporary design features.
What a great opportunity for Public Works canada to assist the local community of Laniel and benefit tourism in the Temiskaming area. The largest group of tourist are the annual groups of paddlers who tour the Kipawa each year. Ask the Mayor of Laniel and local depanneur.The largest tourism event in Laniel is the Annual Kipawa river festival attracting hundreds of paddlers on the Saint Jean Baptist weekend , and other weekends from April to Octobre.
The local community of Laniel with the assistance of the kayaking community, Volet11 program, the MRC Laniel, and Tembec have spent over $100,000 to enhance the Kipawa river experience with the re-creation of a river walking trail.
Now would be a good time for Public Works to do their share and at the minimum investigate the possibility of creating a paddler and navigable dam to continue to add value to the tourism industry for Laniel.
Imagine enhancing a natural" Disneyland" in northern Qubec creating tourism dollars and local jobs and all by having some foresight. Adding a shute for boats is not that different then when dams added sluices for logs. The money is not in logs anymore but in tourism, so please stop thinking like the engineers who wish to create a proven unsafe bottom flow , automated dam controlled offsite in Montreal to the hydro demands from the USA. Let us keep the American and Quebec and Ontario paddlers coming to Laniel instead of creating a dam that will stop this inflow of tourist dollars. Olympic paddling sites were created specifically for paddlers and cost hundred of millions of dollars. You have it in your power to maintain a unique natural paddling experience. The small investment in catering to the tourism industry in Laniel will be paid back for generations to come. Remember that your decision will affect the next three generations if this new dam lasts as long as the present one.
You have the opportunity to do right. Consult the stakeholders other than engineers, like the paddlers, fishermen, hunters and local businesses who are your real constituants.
This work Les Amis are doing, and especially me as president, is arduous, thankless and time consuming. I consider the issue of Navigability to be our one last stand. If we lose this fight, it will be hard to win any other concerning rivers, we'll lose the Kipawa and have no one to blame but ourselves. We may lose the fight, but it won't be because I didn't do everything I could do.
Please reconsider your statements concerning navigability. I look forward to your response to this matter which I consider quite important and serious.
Pete
FYI: http://www3.sympatico.ca/kayaky/peter.htm
cc Kim Turnbull and Gilles Brasseur
Robert Laporte[/b]
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Peter Karwacki
Guest
subject: Scott Shipley suggests countermeasures
Make them an offer they can't refuse
First of all, I hope that there is some way to go forward without going to court. These fights can be long and difficult and often no one feels like a winner. I would also particularly recommend against attacking anyone’s professional licensure. I think that, often, the best way to go forward is to try and emphasize the positives of these projects in lieu of going the other way.
Secondly, if we know their budget under the current design and whether or not we could offer to take over a part of the project for the same budget. I.E. if they have a scour pad and bank protection that will cost xxx maybe we could create a navigable bypass for the same $$’s. Just a thought.
Lastly, maybe there is a way to sell them on the benefits of these projects in terms of community, economic effect, etc.
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Today Mr. Tremblay, by telephone refused accept the video evidence which contradicted his opinion to Mr. Robert Laport Project administrator of the Laniel Dam Refurbishment.
In refusing he said,
" Give it to Mr. Laporte and see if he will give it to me"
Wow.
Our only recourse at this point is to write a letter of complaint concerning both Mr. Laporte and Mr. Tremblay to the Quebec Engineering society.
My latest communication with Kim Turnbull the project officer for our EA is that they now have the Kipawa River DVD entered into the EA registry.
They are consulting with their legal advisors concerning this whole matter of the stamped opinion letter from Mr. Tremblay and our request for documentation concerning injuries at the dam and any internal memos and discussion memorandum.
As I've mentioned, the Kipawa is a last stand, what other river has the history, the heritage and value. Let's draw the line at the Kipawa and fight the good fight
The Syndic, Office of the Syndic
Ordere des ingénieurs du Québec
Windsor Station of Montreal
Suite 350,
1100 de la Gauchetière West,
Montreal, Quebec
H3B 2S2
BY FAX 514-845-7780
Dear Sirs :
Regarding : Professional Conduct of Mr. Pierre Tremblay registration #22603
I am asking the Syndic, the professional body of oversight of Quebec’s Engineers to review a recent case involving Mr. Tremblay.
Mr. Tremblay has issued an opinion while in the employ of Tecsult International for his client, Robert Laporte of Public Works, Goods and Services Canada on the question of Navigability of the Kipawa River at the Dam in Laniel. I’ve attached his letter of Opinion currently filed in the registry of the Environmental Assessment of the Laniel Dam Refurbishment.
I’m sending a copy of the letter I recently forwarded to Mr. Tremblay.
I also have a DVD showing the Kipawa River being safely navigated by canoes, kayaks and rafts during one of the recently held Kipawa River Festivals in Laniel. My colleague Dave Pollard asked Mr. Tremblay if he would be interested in reviewing it and received a flat refusal.
My concern is that Mr. Tremblay has issued an Unqualified Opinion on the navigability of the Kipawa River at the Laniel Dam and used his registration as an engineer in Quebec to add credibility to his opinion the use of which in this case is unethical, and unprofessional.
I’ve asked for a qualifying statement from Mr. Tremblay as a remedial action as you can see from the attached letter which was faxed to him on November 9th, 2005.
Your consideration of this matter is extremely important to members of the whitewater paddling community as Mr. Tremblay’s opinion weighs heavily on the Environmental Screening report which will be issued and reviewed as it will unduly influence the Decision of the Canadian Minister of Transport in granting his approval for the refurbishment of the dam at Laniel without qualifications.
Yours Truly,
Peter Karwacki
1620 Trenholm Lane
Ottawa, Ontario
K4A 4B6
Peter, good to see you keeping up the good work.
If I could just make an appeal to paddlers to NOT mention the dam at Minden as part of this letter writing campaign. Technically, running that dam is illegal. My conversations with OPP officers have led me to believe that "staying under the radar" is the best way to ensure that we can keep running it without threat of prosecution. Including it in the letter writing campaign is pretty high profile.
The General membership of Whitewater Ontario in ratifying the decision of WO's executive has pledged $10,000 to support a Les Amis challenge of the Laniel Dam refurbishment if necessary via judicial Review. The president of WO, Cam McDiarmid is going to ask other provincial paddling associations to anti up matching funds.
They see this as fundamental to the question of recreational use of navigable waterways and they see that the dam at Minden could be affected by the outcome. Further they recognized the long history of NOLAC, and Les Amis and their membership with the activities of Whitewater Ontario.
At Les Amis Special General meeting in Montreal on December 3rd the LES AMIS membership will be asked to help pilot our strategy for the next two to six months.
The contract is now awarded
A contract of 13 406 560 $ for the rebuilding of the Laniel stopping OTTAWA, November 7, 2005 - The honourable Jean-C. Lapierre, Minister for Transport and political lieutenant for Quebec, in the name of honourable Scott Brison, public Minister for Labour and governmental Services, announced today the attribution of a granted contract of 13 406 560 $, following an invitation to tender, with the company David S. Laflamme Construction Inc for the rebuilding of the Laniel stopping, which is located at Laniel (Quebec). Work, which aims at replacing the concrete crest gate and the riprap dam of the stopping, will end in autumn 2007. "By replacing the stopping, the government of Canada ensures the best possible investment for the Canadian taxpayers, declared the Lapierre minister. Public works and governmental Services Canada (TPSGC) took time to examine all the options well, and it held of vast consultations before beginning work of replacement of the stopping. The project will be carried out with a view to the environment and according to the principle of durability. One will collaborate with the community to ensure the good course of the process of repair "the Laniel stopping was established in 1911 by the federal ministry of Public works to allow navigation on the river of Outaouais and the energy production. The stopping controls the discharge of river of Outaouais starting from the Kipawa tank located in Témiscamingue, in Quebec. Even if Public works and governmental Services Canada (TPSGC) ensured the servicing of the stopping, the Ministry carries out the rebuilding of the Laniel stopping to ensure the safety of the neighbouring communities. Before allotting this contract, TPSGC held of the meetings of consultation targeted with members of the community, groups of leisures, First Nations and general public to take care that the concerns of those are taken into account. The Ministry also carried out an environmental evaluation to avoid the effects on the habitat of fish and the abrasion in the sector of work of rebuilding. TPSGC will work with the surrounding municipalities and Hydro-Quebec to take care that measurements necessary to the protection of the people and the goods located at the neighbourhoods of the Kipawa tank, the Gordon brook and the town of Témiscaming are taken during and after the building work. For more information on the projects of markets of the government of Canada, consult www.merx.com, the electronic service of invitations to tender of Canada.
Now the original french:
OTTAWA, le 7 novembre 2005 –
L’honorable Jean-C. Lapierre, ministre des Transports et lieutenant politique pour le Québec, au nom de l’honorable Scott Brison, ministre des Travaux publics et des Services gouvernementaux, a annoncé aujourd’hui l’attribution d’un contrat de 13 406 560 $ octroyé, à la suite d’un appel d’offres, à l’entreprise David S. Laflamme Construction Inc. en vue de la reconstruction du barrage Laniel, qui est situé à Laniel (Québec). Les travaux, qui visent à remplacer l’évacuateur en béton et la digue en enrochement du barrage, prendront fin en automne 2007.
« En remplaçant le barrage, le gouvernement du Canada assure le meilleur investissement possible pour les contribuables canadiens, a déclaré le ministre Lapierre. Travaux Publics et Services gouvernementaux Canada (TPSGC) a pris le temps de bien exa-miner toutes les options, et il a tenu de vastes consultations avant de commencer les travaux de remplacement du barrage. Le projet sera réalisé dans le souci de l’environnement et selon le principe de la durabilité. On collabo-rera avec la collectivité pour assurer le bon déroulement du processus de réfection. »
Le barrage Laniel a été établi en 1911 par le ministère fédéral des Travaux publics pour permettre la navigation sur la rivière des Outaouais et la production d’énergie. Le barrage contrôle le débit de la rivière des Outaouais à partir du réservoir Kipawa situé dans le Témiscamingue, au Québec. Même si Travaux publics et Services gouvernementaux Canada (TPSGC) a assuré l’entretien courant du barrage, le Ministère procède à la reconstruction du barrage Laniel pour assurer la sécurité des collectivités avoisinantes.
Avant d’attribuer ce contrat, TPSGC a tenu des séances de consultation ciblées avec des membres de la collectivité, des groupes de loisirs, des Premières Nations et du grand public pour veiller à ce que les préoccupations de ceux-ci soient prises en compte. Le Ministère a également procédé à une évaluation environnementale pour éviter les répercussions sur l’habitat du poisson et le frai dans le secteur des travaux de reconstruction. TPSGC travaillera avec les municipalités environnantes et Hydro-Québec pour veiller à ce que les mesures nécessaires à la protection des personnes et des biens situés aux alentours du réservoir Kipawa, du ruisseau Gordon et de la ville de Témiscaming soient prises pendant et après les travaux de construction.
Pour plus de renseignements sur les projets de marchés du gouvernement du Canada, consultez www.merx.com, le service électronique d’appels d’offres du Canada.
s it worth it to carry on? Good question. Les Amis will have to figure out how to balance the $ and time output for maintaining the runnability of an artificial drop on a river with lots of great natural drops. I would like it to stay runnable, but there may be other fights to fight.
The question now rests with paddling clubs, groups, associations, civil activists, and their ilk who must anti up in terms of cash support.
For the record, I could get no support in cash from the Sierra Club or the Sierra Legal Defense Fund. Elizabeth May, order of Canada, would not return my mail or phone calls.
FQCKEV has no money. The AWA has their own problems. The Mayor of Laniel, just wants the project to get started.
But Whitewater Ontario has pledged $10,000 in support... not enough.
So...
Here we have past practice and a right accummulated over 20 years with a record of safety by recreational users.
We have a government averse to excess liability coupled with a stubborn bureaucracy, tight lipped and uncooperative.
We have closed minded participants with irreconcilable differences.
Les Amis will meet December 3 in Montreal, and decide whether or not to file for judicial review. Our case is strong, none better for recreational users of navigable waterways in recent history. And our cause is just.
The result, creation of jurisprudence, the basis of our legal system, would affect so many other future cases preserving the right of Canadians to paddle navigable waterways and not simply "walk around". Now is the time to act but, as I've always said, Canadians deserve what they get.
So I ask you all, is it worth it?
Pete
If you have oblique or other contacts with benevolent organizations or individuals consider making an appeal on our behalf.
Here is a sample pitch. (also don't forget our special meeting in Montreal December 3rd , 10:00 AM 6925 Rue Lacroix
Would this issue be of any interest to the your organization?
The river preservation group, Les Amis de la Riviere Kipawa wants to preserve the public's long standing right to navigate the Kipawa River at the Laniel Dam but the really big issue is the fundamental right of canadians to navigate our lakes and rivers and the applicability of the Navigable Waters Protection act for recreational use, and the need for third party mediation in the environmental assessment process.
See
www.kipawariver.ca
And for more detailed information:
http://www3.sympatico.ca/kayaky/NOLAC.htm
We've already raised about $18,000 for a judicial review in Federal Court which includes $10,000 from Whitewater Ontario. Just recently the Canadian Minister of Transport has issued his approval for the refurbishment of the Laniel dam which includes a design which is not navigable. PWGSC, dam owner/operator does not want anybody navigating the river through the dam at Laniel. An Environmental Screening report has been issued and the mitigation to paddlers has been identified by the bureaucrats as "walk around" in spite of 40 years of safe navigation of the Kipawa River at the dam by raft, kayak and canoe.
The rationale: excessive liability to the crown.
We think that the Minister of Transport's decision should be sent to judicial review with reference to his responsibility under the Navigable Waters Protection Act to maintain the right of Canadians to Navigate the Kipawa river and review the rather slanted environmental review done by PWGSC on its own project.
We need some cash, legal advice and moral support. Interested?
People ask Me, "So what can I/we do?"
--------------------------------------------------------------------------------
People often ask me what they can do to help the cause of Les Amis and of the Kipawa.
Here are some suggestions:
Pete
1: Make a personal appeal for financing for the Judicial Review of the Minister of Transport's project approval:
Would this issue be of any interest to thyour organization? The river preservation group, Les Amis de la Riviere Kipawa wants to preserve the public's long standing right to navigate the Kipawa River at the Laniel Dam but the really big issue is the fundamental right of canadians to navigate our lakes and rivers and the applicability of the Navigable Waters Protection act for recreational use, and the need for third party mediation in the environmental assessment process.
See
www.kipawariver.ca
And for more detailed information:
http://www3.sympatico.ca/kayaky/NOLAC.htm
We've already raised about $18,000 for a judicial review in Federal Court which includes $10,000 from Whitewater Ontario. Just recently the Canadian Minister of Transport has issued his approval for the refurbishment of the Laniel dam which includes a design which is not navigable. PWGSC, dam owner/operator does not want anybody navigating the river through the dam at Laniel. An Environmental Screening report has been issued and the mitigation to paddlers has been identified by the bureaucrats as "walk around" in spite of 40 years of safe navigation of the Kipawa River at the dam by raft, kayak and canoe.
The rationale: excessive liability to the crown.
We think that the Minister of Transport's decision should be sent to judicial review with reference to his responsibility under the Navigable Waters Protection Act to maintain the right of Canadians to Navigate the Kipawa river and review the rather slanted environmental review done by PWGSC on its own project.
We need some cash, legal advice and moral support. Interested?
2: Other activities
The best thing paddlers can do to help the cause of the Kipawa:
1. attend the rally and bring others including non paddlers to attend and buy beer and have fun
2. write your MP /MNA and raise the issue and post your objections -1 letter = 200 who didn't write
3. Write Thierry Vandal the CEO of Hydro Quebec strongly opposing the 132 MW standard decrying the use of "diversion" as the most environmentally
inappropriate method of power production
4. Write Jean Charest, Premier of Quebec protesting that either the algonquin or the tabaret project will eliminate all other values on the Kipawa River by turning it into a dry gulch.
5. See if you can get other allied groups interested by showing your own interest, ie the Sierra Defense Fund, Earthwild, MEC, and so on.
6. Demand further consultation
7. Currently we are at the point where we need to sway public opinion and raise awareness. We may launch a Writ of Mandamus action against the Minister of Transport to get the court to require him to rule that the Kipawa is navigable and such navigability must be protected, under the Navigable Waters Protection Act. However, if all else fails, don't get mad, simply disrupt, foment, and protest. Have you read "the monkey wrench gang" by Edward Abbey?
8.Action Alert: Help preserve recreational opportunities on the Kipawa: Laniel Dam Refurbishment threatens the "Dam" run.
While Hydro Quebec continues to be a threat to paddling opportunities enjoyed by boaters from Canada and the US. We have reached a major decision point with the Tabaret project and have an opportunity to kill a hydro proposal that threatens one of the finest whitewater resources in Eastern North America.
A key initiative in this strategy is to ensure that the Kipawa River remains naviable at the Laniel Dam. We want to keep that water flowing through there.
This run is a classic road trip destination that is enjoyed by paddlers from around the world, has been featured in kayaking films, and has sections suitable for intermediate paddlers. It is a true classic. This action alert comes to us from Peter Karwacki, a well-known environmentalist and river protection advocate. Letters to the individuals listed below would be a significant help in documenting recreational interest in this river (if you can send e-mails now, then send hard copies later, that would be the best thing). Quick action now will preserve this incredible whitewater resource for future generations. The Kipawa has been featured in whitewater videos, and is a FANTASTIC whitewater resource.
Note:
Navigability Definition
Navigability The determination of whether or not a waterway is actually considered navigable rests solely with the Minister or his/her designated representative. For the convenience of applicants the following administrative definition is provided:
Navigable Waters include 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 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.
I have been working to convince the Navigable Waters Protection Division (NWPD) that we need to have Kipawa River, Laniel Quebec saved as one of the places we do not want to see ANY diversion projects.
We need some IMMEDIATE help with this effort.
We needed the NWPD to attempt to go to bat for the paddlers and say NO. BUT they need as much ammunition as we can provide them, to be able to do so. We have already identified the Kipawa as one of the top rivers in the area. Right now the big-business Quebec Hydro is pressing them. PWGSC is already talking to "others" about divestiture of the refurbished Laniel Dam. Imagine Hydro Quebec as the new owner, able to control the water flow for a more perfect diversion of the Kipawa River!
PLEASE do the following :
Write a letter that outlines your concerns regarding the Kipawa - there is some information at the bottom to assist you in doing so.
Send the letter to the following people - this does not need to be a work of art, or any sort of redneck efforts at bashing the government or the proponent. We need to clearly state some of the key things at the bottom of the page. Please Blind Carbon Copy (BCC) me with your responses.
Get your club to write a letter as well.
We also need letters to the editor, and articles in our local papers.
E-mail the letter to each person individually, and mail them individually to the people below. Try to put your own spin on the words below. YES - this is work, but we have clear indications that this thing can be stopped, if we act together, and act soon. You can be a part of saving this stream - for now and for the future.
Some things that make the Kipawa a spectacular river worth saving as it is:
easy road access to a number of spectacular paddling runs
an incredibly long season
varied opportunities for various skill levels there are easy intermediate runs there are challenging more difficult runs
this is a place you can paddle at any time
the Kipawa has beautiful clear water amazing bedrock exposures, and incredible bank foliage aesthetics that are unmatched by any stream in this area
paddling reaches that are entirely runnable
short portages for those that wish to do the runs without doing the hardest drops
fantastic well-defined features easy access off paved roads
a world-class paddling destination that
you do not want more power lines in the Kipawa River area.
that YOU want a free flowing river. To make your point to local council, also emphasize:
You live and work in this area or you chose this area for whitewater recreation because it is the Outdoor Recreation Capital of Canada - and the Kipawa is a supporting player in the town of Laniel claiming this, that local business depends on recreational draws to this area if applicable that you earn your living in this area from recreational interests - particularly whitewater that you come to this area to recreate because of the opportunities that streams such as the Kipawa offer
The NWPD, and Natural Resources Quebec need to hear this. More importantly you need to tell the Temiskaming MRC.
With the recent call for even more of these projects, it is becoming more important to look to the preservation of some of the finest streams. You need not put forward any earth-shattering points, stay for the entire meeting, or endure long presentations. Come forward and be recognized, and then provide your input (counted as a vote) in opposition to the project. It is key that everyone come, stand up and be counted.
Please circulate this, and encourage everyone to come forward and put forward their opposition to Tabaret and the reconfigured Laniel Dam project which threatens the DAM run. The proponent, Hydro Quebec and PWGSC will be working to have as many people as possible come forward and support the project.
Transport Canada
Quebec Region Regional Superintendent Navigable Waters Protection Transport Canada 101 Champlain Blvd, 3rd Floor Quebec, QC G1K 7Y7 Phone: (418) 648-4549 Fax: (418) 648-7640 Website: http://www.marinfo.gc.ca/en/Services/ppen_loi.asp
Headquarters
Transport Canada 330 Sparks Street Ottawa, ON K1A 0N5 Tel: 613-990-2309 Fax: 613-954-4731 or 613-998-8620 TTY: 1-888-675-6863 Website: http://www.tc.gc.ca
Manager Navigable Waters Protection Marine Safety Transport Canada Tower C, Place de Ville 330 Sparks Street Ottawa, ON K1A 0N8 Phone: 613-990-5929 Fax: 613-998-0637 Website: http://www.tc.gc.ca/marinesafety/Ships-and-operations-standards/nwp
Members of the Temiskaming MRC
villebelleterre@hotmail.com; mun.fug@sympatico.ca; mun.guerin@sympatico.ca; municipalite.laniel@sympatico.ca; muni.latulipe@sympatico.ca; municipalite.laverlochere@sympatico.ca; municipalite.lorrainville@cablevision.qc.ca; munmoffet@sympatico.ca; mrc@mrctemiscamingue.qc.ca; municipalitenedelec@sympatico.ca; municipalitendn@sympatico.ca; mun_remigny@temiscamingue.net; mun.st-bruno-de-guigues@cablevision.qc.ca; municipalitefabre@cablevision.qc.ca; mun.st-eugenes@sympatico.ca; tedraper@sympatico.ca; admintem@vianet.on.ca; vvm.dgst@cablevision.qc.ca; mun.bearn@cablevision.qc.ca
Laniel Municipal contacts
(819) 634-3123 (819) 634-2629 municipalite.laniel@sympatico.ca
Society for the development of temiskaming
Nom Fonction #poste Courriel Aumond Joëlle Agente de suivi 41 joellea_sdt@temiscamingue.net Beaulé Joëlle Agente administrative 22 joelleb_sdt@temiscamingue.net Beauregard Adèle Directrice développement des entreprises 31 adeleb_sdt@temiscamingue.net Beauregard Aline Agente à la direction 21 alineb_sdt@temiscamingue.net Bellehumeur Nadia Conseillère développement des collectivités 24 nadiab_sdt@temiscamingue.net Brunet Beaudry Ann Conseillère développement des entreprises 25 annbb_sdt@temiscamingue.net Falardeau Johane Agente développement Internet 26 webmaster@temiscamingue.net Lamarche Stéphanie Conseillère tourisme 29 stephaniel_sdt@temiscamingue.net Landry Hélène Conseillère en plein air 49 helenel_sdt@temiscamingue.net Lessard Monique Agente de développement en économie sociale 32 moniquel_sdt@temiscamingue.net Lessard Nancy Conseiller financier 23 nancyl_sdt@temiscamingue.net Rannou Josée Directrice au financement 30 joseer_sdt@temiscamingue.net Richer Josiane Agente développement agroalimentaire 51 josianer_sdt@temiscamingue.net St-Pierre Christine Agente de développement aux entreprises et jeunesse 27 christines_sdt@temiscamingue.net Trépanier Guy Directeur général 28 guyt_sdt@temiscamingue.net
Other Important Addresses
Thierry Vandal, CEO,Hydro Québec, 75 boul René Levesque, Montreal, P.Q., H2Z 1A4
Caille.andre@hydro.qc.ca
Minister of Transport
Parliament Hill:
House of Commons
Ottawa, Ontario
K1A 0A6
Telephone: (613) 995-7691
Fax: (613) 995-0114
E-Mail: Lapierre.J@parl.gc.ca
Department:
Transport Canada
Place de Ville, Tower C, 29th Floor 330 Sparks Street
Ottawa, Ontario
K1A 0N5
Telephone: (613) 991-0700
Fax: (613) 995-0327
E-Mail: mintc@tc.gc.ca
Superintendent
Navigable Waters Protection Program
3rd floor, 901 Cap Diamant
Gare Maritime Champlain
Quebec Qc.
G1K 4K1
Phone (418) 648-5403
Internet demersm@tc.gc.ca
Julie Rousseau
Responsable du Répertoire des barrages
Centre d'Expertise Hydrique du Québec
Direction de la sécurité des barrages
Téléphone: (418) 643-6666 poste 231
Télécopieur: (418) 643-4609
Courrier: julie.rousseau@menv.gouv.qc.ca
http://www.cehq.gouv.qc.ca/
Le Citoyen Rouyn-Noranda, Rouyn-Noranda
819.762-4361 - 819.797.2450 fax
courriel : quebecor@cablevision.qc.ca
La Frontière, Rouyn-Noranda
819.762.4361 - 819.797.2450 fax
courriel : La Frontière, Rouyn-Noranda - quebecor@cablevision.qc.ca
Please let me know if you need any more information.
Sincerely
Peter Karwacki
Les Amis de la Riviere Kipawa Phone/Fax:(807-468-2810 E-mail:kayaky@hotmail.com
UPDATE: Ottawa River Runners Support Les Amis!
--------------------------------------------------------------------------------
The membership of ORR at their AGM last night, held in Ottawa approved the efforts of Les Amis to fight for the access and navigation rights of recreational paddlers.
Their initial donation towards the judicial review case was set at $200.
Here is a note concerning judicial review:
The filing cost is only $50.
The application as it is call, must be filed with the Federal Court Registry within 30 days of notification of the approval of the project. The contract, see above threads, was announced November 7th.
I've asked Ministry of Transport, officials and they are not forthcoming. Osbaldson said, " I don't have the file, you have to speak to Demers".
Just great.
Lips are tighter than a fly's ass in august with the sole intent of defeating us.
Alas we persevere.
Posted: Tue Nov 29, 2005 12:18 pm
Post subject: Ordre of Engineers of Quebec confirms receipt of request
--------------------------------------------------------------------------------
In their letter me to I have confirmation that the Order of Engineers of Quebec is currently reviewing my request for oversight of Mr. Tremblay's opinionn letter to Mr. Laporte.
The next step would be the launch of an inquiry, a high powered process, but this would only occur if they felt the complaint had merit.
Les Amis Membership Presses for Mediation
--------------------------------------------------------------------------------
At the special meeting of Les Amis on Montreal we considered our options regarding the Judicial Review.
The main point is that the Minister of Transport's decision can only be appealed based on its
1. reasonableness
2. fairness of process
3. unbiased nature
Our case is straightforward, to us, but the governement lawyers will block us at every step, bogging the case down in procedural motions (did the right party get served, is the issue arguable, were the right documents legally files... And so on) each one requiring the intervention of an expensive lawyer.
This means that a case the should only cost $30,000 could cost a lot more.
We know we have a good, and interesting case, and these things don't come up that often. Our moves would benefit all paddling groups but we need them to come forward with funding. Charitiable donations could be funneled through a operation like the Sierra Club or even the Canadian Environmental Action group.
For now we've asked our lawyer to write a letter, identifying the key points of our case, and asking for mediation. Our financial position is not yet finalized to go further than this.
The other thing is that there is no government and won't be until January 23rd or a bit later with the cabinet appointments. Its like limbo.
Most importantly, we've discovered that there are no approvals yet, not for the EA, and not for the refurbishment. Laflamme construction would put themselves in legal jeopardy if they proceed to work without it.
We were concerned about whether or not we had to meet a 30 day time limit from the announcement of the contract to Laflamme on November 7th which have only given us til Wednesday to file. In fact, because MOT may approve "the project" retroactively we could probably be reasonably justified to file our concerns because the issues would not change. But the membership has asked that we try yet again for mediation for the benefit of the government and for us.
Still the Notice of Motion is being refined to mesh with fine points of law. We'll be ready to use it if we must.
Our AGM will be in Montreal on February 4th, at a location to be finalized.
We have this most recent communication from the MOT's office: Dated December 5th for a project awarded November 7th and announced by the Minister of Transport himself on behalf of Scott Brison Minister of PWGSC.
You all figure it out with regard to due process, fairness, reasonableness?
Dear Mr. Karwacki:
On behalf of the Honourable Jean-C. Lapierre, Minister of Transport, I am writing in response to your e-mail of October 31, 2005, which was further to our previous exchanges of correspondence regarding the Laniel Dam on the Kipawa River.
Minister Lapierre has noted your concerns and your willingness to meet to further discuss the Laniel Dam project. As you know, Transport Canada is indeed a Responsible Authority for this project under the Canadian Environmental Assessment Act (CEAA). The department is collaborating with Public Works and Government Services Canada, the project proponent, to ensure that the environmental assessment considers the measures necessary to mitigate the environmental effects of the project.
Transport Canada, Fisheries and Oceans Canada and Public Works and Government Services Canada, the Responsible Authorities for this project, selected screening as the type of environmental assessment to be performed. As you are aware, screening takes into account public comments, such as those you have expressed. I should note that, in this regard, the screening report is not yet finalized. As per Transport Canada's responsibilities under the Navigable Waters Protection Act and the CEAA, the department is still studying the environmental impacts of this project.
Transport Canada appreciates your continued interest in this project. Thank you for writing.
Yours sincerely,
Karine G. Cousineau
Senior Quebec Assistant
the right hand and the left hand are not acquainted
--------------------------------------------------------------------------------
Mr. Karwacki - once again, you are speaking of concerns
surrounding specific operationial project files within the
Province of Quebec which are managed entirely by our Quebec
Office. I have no knowledge of the project to which Ms.
Cousineau refers nor as to whether or not her interpretation of
the events surrounding the project is, in fact, correct.
Again, I refer you to our Quebec Regional Office regarding
answers to these project-specific concerns.
David J. Osbaldeston
National Manager
Navigable Waters Protection Program
Marine Safety, Tower 'C', Place de Ville
330 Sparks Street, 10th Floor, Suite 1055
Ottawa (Ontario) K1A 0N8
Telephone: (613) 990-5929
Fax: (613) 998-0637
Cell: (613) 297-1574
e-mail: osbaldd@tc.gc.ca
NWPP Approval - Process
David J. Osbaldeston
National Manager
Navigable Waters Protection Program
Marine Safety, Tower 'C', Place de Ville
330 Sparks Street, 10th Floor, Suite 1055
Ottawa (Ontario) K1A 0N8
Telephone: (613) 990-5929
Fax: (613) 998-0637
Cell: (613) 297-1574
e-mail: osbaldd@tc.gc.ca
Much appreciated. In that case let me phrase my questions in a
more general
way.
I learned yesterday, from Karine Cousineau, the past Minister
of
Transport's chief Quebec Assistant that in one certain project,
its
applicable EA was not finalized, that the project was not yet
not approved
under 5(1)a, and yet the Minister of Transport himself announced
the
awarding of the contract prior to its approval, and in doing so
said he was
doing it on behalf of the Minister of PWGSC.
In this regard, don't you think that any reasonable person under
the
circumstances might assume the Minster, in announcing the
awarding of a
contract, was approving it as well since he is the Minister that
is
authorized to approve the project?
Would this be considered standard practice within the Ministry
of Transport?
Is it not true that a company would be in violation of the NWPA
if they
started working on a project without the necessary 5(1)a (NWPA)
approval?
Wouldn't that put the legitmacy of your approval processes into
question?
I would welcome the opportunity to meet with you to discuss this
issues
further since the application of general rules as they apply to
my specific
case is of great interest, especially since you are in Ottawa
and Mr. Demers
is in Quebec City.
You all be the judge
--------------------------------------------------------------------------------
Since at the present time there is no court case, you all be the judge as to whether the process is fair, and reasonable and unbiased.
Also while you are at it consider whether all the relevant facts have been considered, and the mitigation proposed is reasonable and fair under the circumstances.
Consider that there is an election and that you all might question your own future Ministers of parliament: Ask the following question:
I am interested in hearing each of your opinions on the Navigable Waters Protection Act. This is a piece of federal legislation that is supposed to guarantee the rights of Canadians to navigate our waterways.
Currently the federal government is attempting to replace an existing dam on the Kipawa river at Laniel Quebec. The current dam is navigable and has been used commercially and recreationally for over 20 years. The proposed replacement structure will not be navigable and the mitigation measure proposed is that paddlers will have to WALK AROUND. This mitigation measure is simply NOT ACCEPTABLE. If navigability of the dam can be maintained, then so can navigability of the entire river. I am not opposed to the replacement of the existing dam I just want to ensure that the new structure will retain the navigability of the existing one.
For more information I urge you to visit
www.kipawariver.ca
And for more detailed information:
http://www3.sympatico.ca/kayaky/NOLAC.htm
The Kipawa River and Laniel dam is one facet, yet a pressing one, of this issue. Currently the Ontario Ministry of Natural Resources is accepting proposals for the development of a full-range of waterpower opportunities on Crown land, from small-scale development up to and including large commercial developments. These developments have the ability to further effect the navigability of Canada’s and Ontario’s waterways.
A response to this email would be appreciated as I, and other like minded voters in this riding, view this issue as one of great importance.
Thanks for your time.
A Note on Access to Information
--------------------------------------------------------------------------------
$5.00 and a good question.
2005 12 05
George Steeves
Access to Information Officer
ph 956-2666
fax 819-994-2119
Dear Mr. Steeves.
Further to your request to me today for clarification:
Please give me the date that PWGSC received approval from the Minister of Transport under section 5(1)a of the Navigable Waters Protection Act for its Laniel Dam Refurbishment contract and any conditions that were attached to that approval.
That contract was awarded by PWGSC, and it was announced by the Minister of Transport on November 7th, it must be approved under 5(1)a, correct?
For your further information:
Peter Karwacki
1620 Trenholm Lane
Ottawa, Ontario
K4A 4B6
Its hard to find approvals which don't actually exist.
David S. Laflamme Inc of Stittsville, Ontario is the construction firm awarded the contract.
He writes:
Mr. Karwacki;
We are in receipt of your e-mail of December 5, 2005. Please direct all inquiries or concerns to the Project Manager, Mr. Robert Laporte P.Eng at tel # (819) 956-7369
Thank you
David S. Laflamme
President
This is the last correspondence I have had from Mr. Laporte:
Dated June 29th
Comme mentionné lors de la consultation publique, il est strictement défendu de descendre le barrage. Les affiches et l'estacade en font preuve.
Robert Laporte
TPSGC
But the signs were only recently put up, after we asked for them. This fellow has been no help at all but he is the project administrator. Give him a call.
LAPIERRE ANNOUNCEMENT BUT NO APPROVAL - How can that be?
--------------------------------------------------------------------------------
Mr. Peter Karwacki
President
Les Amis de la Rivière Kipawa
Peter.Karwacki@cognos.com
Dear Mr. Karwacki:
On behalf of the Honourable Jean-C. Lapierre, Minister of Transport, I am writing in response to your e-mails of November 29 and 30, 2005, which were further to a previous exchange of correspondence with this office regarding the refurbishment of the Laniel Dam.
As you know, Transport Canada is currently reviewing this proposed project. In accordance with the Navigable Waters Protection Act (NWPA), the proponent of a project must complete the following steps:
* complete and sign a letter of application and provide supporting information, including environmental assessment information;
* submit a letter of application with the required number of copies of the plans;
* deposit a full set of plans and supporting documentation at the Land Registry office that has jurisdiction over the proposed work site; and
* advertise the work in the legal section of two local newspapers and in the Canada Gazette, Part I.
Please be assured that Transport Canada has not yet issued the approval under the NWPA for the proposed Laniel Dam project. Once the department receives proof of the publications from the proponent, it will review the comments received before making a decision on the project. I should note that the proponent is expected to publish its proposal in the Canada Gazette, Part I, in the near future.
I trust that the foregoing will be of assistance. Thank you for writing.
Yours sincerely,
Leslie Swartman
Chief of Staff
Commentary:
Lapierre Announced the project back on November 7th, saying he was speaking for Scott Brison minister responsible for the project.
I've asked "Is it normal procedure to for the approving minister to announce a project he has yet to approve?, on a design that has yet to be approved?"
------------------------
The current election has left things up in the air.
New Ministers of Transport, PWGSC, Environment and Fisheries may be elected January 23rd at which time Les Amis will attempt to establish communications with the new cabinet members.
I would encourage you all to ask your potential members about the issue of access to whitewater resources. It is the NWPA that allows the Minister of Transport to approve obstructions to navigable waterways or impose conditions for such an approval such as reasonable accommodation.
In so doing the Minister of Transport could approve obstructions to all of our whitewater paddling resources. Its still early in the 21st century. Some might argue, for example, that Quebec Hydro has a plan for every drop of water that runs downhill in Quebec! Our thirst for electric power grows.
There has never been a better time to become politically active. Its up to all of us to work hard to secure our national heritage. Once the dams, diversions, bridges, weirs and other sundry structures are built it will be too late.
Peter
PLANS HAVE BEEN DEPOSITED
--------------------------------------------------------------------------------
The plans have been deposited in the Canada Gazette.
Posted by our "friend" and fellow paddler
GILLES BRASSEUR of PWGSC Gilles.Brasseur@pwgsc.gc.ca
4156 Canada Gazette Part I December 17, 2005
Vol. 139, No. 51
The nameless boffs of glass and steel have not atoned, rather they proceed with singular manical obsession: only to be counteracted by the paddling community.
Note:
In accordance with the Navigable Waters Protection Act (NWPA), the proponent of a project must complete the following steps:
* complete and sign a letter of application and provide supporting information, including environmental assessment information;
* submit a letter of application with the required number of copies of the plans;
* deposit a full set of plans and supporting documentation at the Land Registry office that has jurisdiction over the proposed work site; and
* advertise the work in the legal section of two local newspapers and in the Canada Gazette, Part I.
DEPARTMENT OF PUBLIC WORKS AND
GOVERNMENT SERVICES
PLANS DEPOSITED
The Department of Public Works and Government Services
hereby gives notice that an application has been made to the
Minister of Transport under the Navigable Waters Protection Act
for approval of the plans and site of the work described herein.
Under section 9 of the said Act, the Department of Public Works
and Government Services has deposited with the Minister of
Transport and in the office of the District Registrar of the Land
Registry District of Témiscamingue, at Ville-Marie, Quebec, under
deposit No. 12 922 790, a description of the site and plans of
a dam with four gates and one spillway crest, a boom upstream of
the dam, retaining walls and an abutment on the left bank, as well
as temporary structures being coffer dams (upstream and downstream
of the dam), berlin walls and sheet pile walls, in Kipawa
Lake and in the Kipawa River, at Laniel, Quebec. The work is
located at Lot C-1 of Block C, Block 4, Lot 30-11B-1; in part of
Lot 30-11B and part of Lot 30A of Range 8 of the geographic
township; and in part of Block C, part of the bed of the Kipawa
River and part of the bed of Kipawa Lake, located within the geographic
township of Mazenod.
Comments regarding the effect of this work on marine navigation
may be directed to the Superintendent, Navigable Waters
Protection Program, Transport Canada, 901 Du Cap-Diamant
Street, Suite 310, Québec, Quebec G1K 4K1. However, comments
will be considered only if they are in writing and are received
not later than 30 days after the date of publication of this
notice. Although all comments conforming to the above will be
considered, no individual response will be sent.
Quebec's Engineering Syndicat Reviews Complaint
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I have confirmation from the Syndicate that they are reviewing this case. The matter has been assigned for inquiry.
See threads above concerning Engineer's letter.
UPDATE: 2007 03 15 as of this date they have not even commenced.
PWGSC has no approval - NWPA is like 1984 "war is peace
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Following my request under the Access to Information Act I was told that PWGSC did not have any approval from the Minister of Transport to proceed with their project. "No such document exists" was the official reply.
But under the Navigable Waters Protection Act, retroactive approval is possible. There is jeopardy to the project proponent because if approval was not forthcoming they might have to remove their "obstruction".
But here we have the Minister of Transport, a liberal, Mr. Lapierre, announcing a project, that he has not approved - a blatant disregard for due process, bending the rules. A very liberal thing to do.
The NWPA is designed for the Minister of Transport allow obstructions to navigation which is a bizarre effect of an act named to protect Navigable Waters.
Paddlers must be actively contacting their members of parliament and insisting that the Kipawa be Preserved. Today the Kipawa is at stake but tomorrow it could easily be the Ottawa, the madawaska, or any other recreationally navigable waters. We must insist that our access to our rivers, lakes and streams is maintained and defended by the ministry of Transport, and that obstructions be installed only with satisfactory mitigation of the environmental impacts on recreactional boaters.
Peter
2006 03 03 - Investigation is not complete
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I received a letter from the Quebec Syndicat.
As of today, this investigation is not complete, however, they fully intend on investigating how the engineer could proclaim the river was not navigable, thereby affecting the EA, without properly considering the evidence well available that it had been safely navigated for 40 years.
Federal court file number File Number is T-452-06
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File Number is T-452-06
Quebec Syndicat advises inquiry has not yet started
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The engineer inquiring into that opinion by PRTremblay, who expressed a professional opinion TO PWGSC that the Kipawa was not navigable no matter what type of craft has not yet begun. It has been deferred due to work issues.
At the last Kipawa rally we discovered that not only was the sluice at the dam navigable before construction, it was also navigable during construction of the northside gates. Of course the kayakers had to roll over, slip under that blasted snowfence, roll back up, and then run the sluice.
I suppose the syndicat must advise me monthly as this is the third such letter I have received.
I sincerely hope that the deferral is only related to how busy the investigating engineer must be and nothing else. Anyway, this is not a dead issue.
The question: should an engineer voice an opinion, stamped with his engineering number, on a matter which is outside the scope of his professional training? In anycase, What tests were done? water depth, channel width, speed of current, approach, downstreamn conditions?
or was he simply blowing smoke?
what exactly? because using the engineer's stamp is a serious business. For sure, questioning its use is also a serious business, but I've done it because it threatens the historical use of the sluice on the Kipawa, and has been seriously considered in the PWGSC self assessment/environmental assessment.
The effects of Dam Refurbishment
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I have a photograph of the Kipawa at Broken Bridge Rapid dramatically showing the effects of reduced flow on the rapid.
Another photograph shows the maniacal installation of snowfencing above the laniel dam.
The two images juxtaposed paint a horrible picture of environmental assessment gone terribly wrong.
If this is the shape of greening of the environment that PWGSC has in mind, God help us all.
"There's something happening here... what it is ain't exactly clear
There's a man with a gun over there, telling me I got to beware...
You've got to stop now, and look around, everybody look what's going down!"
Buffulo Springfield
1st. Kipawa at Broken Bridge, after the new more "efficient" stoppage of water flow
2nd. Kipawa River, with snowfence above the Laniel Dam Sluice, and galvanized fencing, treacherous portage created on River left
3rd. Sadia Loney running that glorious sluice in better days. Safely and happily.
DAM REFURBISHMENT + PWGSC + P.Q = TABARET!!!!!
The recent announcement by PWGSC minister Fortin about tranferring the Laniel Dam to the Province of Quebec takes us one step closer to the divestment of the dam to Hydro Quebec for its ill conceived TABARET project.
The public is asked to write the Ministry of the Environment to veto any such tranfer subject to a full blown environmental assessment including open and public hearings... in both official languages.
refer to the cnn mathews newswire for "complete" as in as complete as PWGSC would like us to have, coverage:
http://www.ccnmatthews.com/news/releases/search_comp2.jsp?compid=11062&pagesize=25&interval=
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ENGINEERS LETTER: still no investigation: what's it been?1yr
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Its been about a year since the TECSULT engineer issued his stamped opinion to PWGSC officials saying that the sluice at the dam on the Kipawa was not navigable by any craft no matter what type.
That sticky wicket is still sticking as the SYNDICAT of Engineers in Quebec still has not begun the inquiry though on engineer has been assigned to that task its been about a year and nothing.
The argument?
The opinion of the engineer was based on ignorance, and fear of the unknown, not hard facts or investigation, which in my opinion, was unprofession and unwarranted. Adding an engineers stamp adds a level of professional credibility that was injurious to the Environmental Assessment that was ongoing at the time and heavily weighed upon by the PWGSC officials.
At the last rally, kayakers rolled upside down, slipped under the cross river snow fence, rolled up and ran the sluice ... as safely as such a manoever would allow.
More kayakers were injured walking the portage around the dam, given the unstable rock embankment.
No injuries at the dam slucie, a perfect track record at the Laniel dam for the past 20 years in spite of the the safety arguments by PWGSC to try and disallow navigation contrary to the navigable waters protection act. They finally had to turn the water off even thought PWGSC officials were on recording saying they would not alter the flow patterns at the dam.
Navigability Issues in Ontario
If you canoe in Ontario, you are likely to use portages to get you around obstacles, and you may wonder whether you are allowed to use them. As a rule of thumb, on public land which includes the Provincial and National Parks, you are free to proceed. On private land, ask for permission.
The Ontario Public Lands Act (March 31, 1997), Chapter P43, Item 65(4) defines the Public's right to portage:"Where public lands over which a portage has existed or exists have been heretofore or are hereafter sold or otherwise disposed of..., any person traveling on waters connected by the portage has the right to pass over and along the portage with the person's effects without the permission of or a payment to the owner of the lands, and any person who obstructs, hinders, delays or interferes with the exercise of such right of passage is guilty of an offence..." Ontario Supreme Court Ruling on the Reed dam of the Credit River, at Norval: the right to portage is denied because a dam was built where there was no portage before. Tough, eh? So, stand up to anyone trying to build a dam across your favorite river! Ruling of Hosaic Creek, in eastern Ontario, as being a navigable waterway. You gotta share with hunters, though. Lots of legalese, but also some neat statement of the use of Ontario's creeks by Iroquois natives. Ruling on Bronte Creek, west of Toronto, as being navigable. There are many references to other legal cases, including some of the US references
Many thanks to Jim Greenacre for giving me the ugly details of the Credit River case, and to Richard Culpeper for making proper legal search documents available.
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Ontario Supreme Court Ruling on the Right to Portage
Summary:
The individual defendants owned a farm through which a river ran. The farm had been granted by the Crown in two parcels in 1821 and 1822, but the Crown patents did not grant title to the river bed. Prior to the grants, the river had been used by Indians and explorers for canoeing and trading and it was probably also used to float logs to sawmills. In 1825, a dam was built across the river at about the mid-point of the farm. It was still used by the individual defendants to generate electricity. The defendants erected fences across the river each spring to contain their cattle and took them down in the fall. The fences proved to be an obstruction to the plaintiffs, who were recreational canoeists. Further, the canoeists used the defendants' farm as a portage to get around the dam. They brought an action for a declaration that the river was navigable, that the defendants did not own the bed of the river, and that they could not obstruct navigation by means of fencing. The plaintiffs also sought a declaration that they had a right of portage around the dam over the defendants' farm. The plaintiffs added the Attorney-General as a party defendant.
Held, the river was navigable and the defendants did not own the bed, but the plaintiffs did not have a right of portage.
Having regard to the history of the use of the river, it was clearly navigable. It does not have to be used solely for commercial purposes in order to be navigable. Nor did it matter that it became unnavigable during the summer months. That being the case, the defendants did not own the river bed, both because it had not been granted to their predecessors in title and because s. 1 of the Beds of Navigable Waters Act, R.S.O. 1980, c. 40, reserves the bed to the Crown. It followed that the defendants could not obstruct navigation by means of fencing as they had done. However, they could fence the river to contain their cattle, so long as they provided a means of access to the river through their property for canoeists, by providing a gate or other device. On the other hand, the right to use a navigable river does not imply a right of portage over private property, such as the defendants' farm. In any event, the court could not grant such an ill-defined way and subject the defendants to possible liability for its use.
Canoe Ontario et al. v. Reed et al.
Indexed as: Canoe Ontario v. Reed (H.C.J.)
69 O.R. (2d) 494 [1989] O.J. No. 1293 Action No. 20126/87
ONTARIO High Court of Justice Doherty J.
July 31, 1989.
Natural resources ? Water and watercourses ? Navigation ? Canoeists seeking declaration that river running through property navigable and owners of land not owners of bed ? Not entitled to obstruct passage ? River always navigable ? Declaration to be granted ? Canoeists not entitled to declaration of right of portage around dam ? Bedsof Navigable Waters Act, R.S.O. 1980, c. 40, s. 1.
Re Coleman and A.-G. Ont. (1983), 143 D.L.R. (3d) 608, 27 R.P.R. 107, folld
Iveagh v. Martin, [1961] Q.B. 232; Ne-Bo-Shone Ass'n v. Hogarth, 7 F. Supp. 885 (1934); affd 81 F. Supp. 70; Lyon v. Fishmongers' Co. (1876), 1 App. Cas. 662; Marshall v. Ulleswater Steam Navigation Co. (1871), L.R. 7 Q.B. 166, apld
Other cases referred to
R. v. Moss (1896), 26 S.C.R. 322; Rainy River Navigation Co. v. Watrous Island Boom Co. (1914), 6 O.W.N. 537; Stephens v. MacMillan, [1954] O.R. 133, [1954] 2 D.L.R. 135; A.-G. Que. v. Fraser (1906), 37 S.C.R. 577; affd [1911] A.C. 489 sub nom. Wyatt v. A.-G. Que.; Fort George Lumber Co. v. Grand Trunk Pacific R. Co. (1915), 24 D.L.R. 527, 32 W.L.R. 309; Gordon v. Hall, [1958] O.W.N. 417, 16 D.L.R. (2d) 379; Welsh v. Marantette (1983), 44 O.R. (2d) 137, 3 D.L.R. (4th) 401, 27 C.C.L.T. 113, 30 R.P.R. 111; affd 52 O.R. (2d) 37, 21 D.L.R. (4th) 276, 33 C.C.L.T., 289, 36 R.P.R. 236; leave to appeal to S.C.C. refused 54 O.R. (2d) 800n, 29 D.L.R. (4th) 160n, 65 N.R. 159n; A.G. Quebec v. Mireault (1987), 46 R.P.R. 95; U.S.A. v. State of Utah, 283 U.S. 64 (1931), Harrison v. Fite, 148 F. 781 (1906); Gann v. Free Fishers of Whitsable (1865), 11 H.L.C. 192, 11 E.R. 1305; R. v. Robertson (1882), 6 S.C.R. 52; McNeil v. Jones (1894), 26 N.S.R. 299; Rice Lake Fir Co. Ltd. v. McAllister (1925), 56 O.L.R. 440, [1925] 2 D.L.R. 506; Wood v. Esson (1883), 9 S.C.R. 239
Statutes referred to
Beds of Navigable Waters Act, R.S.O. 1980, c. 40, s. 1
Public Lands Act, R.S.O. 1980, c. 413, s. 62(4)
ACTION for a declaration that a river was a navigable waterway, that the defendants did not own the bed and could not obstruct navigation, and that the plaintiffs owned a right of portage over the defendants' lands.
Robert Hickman, for plaintiffs.
E.W. Greenslade, for defendants.
S. Mason, for Attorney-General of Ontario.
DOHERTY J.:?
I The issues
In this case, the interests of the plaintiffs ("the canoeists") collide with those of the defendants, Julian Reed and Laurie Reed ("the Reeds"). The collision occurs along the stretch of the Credit River which runs through the property owned by the Reeds ("the property"). There are three issues:
(i) Do the canoeists have any right to canoe along the part of the river which passes through the Reeds' property?
(ii) If the canoeists have that right, do they have the right to demand the removal of the temporary barriers constructed across the river by the Reeds?
(iii) If the canoeists have that right, do they have the right to enter upon the Reeds' property in order to portage around a dam built in 1825 and presently used and owned by the Reeds?
I must decide to what extent, if at all, the Reeds' interest in maintaining the privacy of their home, and the effective operation of their farm must yield to the interests of those who wish the satisfaction and pleasure of canoeing along this scenic part of the river.
II The scene
The Reeds own a 100-acre farm just west of the Town of Norval, Ontario. Norval is situated east of Georgetown, Ontario, on Highway No. 7. The property on which the farm is located was originally sold by the Crown in two parts: the first in 1821, and the second in 1822. For present purposes, the grants can be taken as being identical. Robert Noble, Mr. Reed's maternal great-grandfather, purchased the property in 1868 and operated the farm and a mill for many years. The property fell out of the family's ownership for several years but was subsequently re-acquired by Mr. Reed and his mother.Mr. Reed has lived on the property all of his life and has owned all or part of the property for over 25 years.
The river travels through the property in a north to south direction. The exact course of the river varies somewhat from year to year. The property is located on both sides of the river for a distance of about one and one-quarter miles. Mr. Reed grazes his cattle on both sides of the river and from time to time, it is necessary for him to take his cattle across the river.
In about 1825 a dam was built across the river at about the mid-point of the property. Just upstream from the dam a pond developed. That pond varies in size, shape and depth from year to year and from season to season. On occasion, parts of the pond area will be dry. A bridge crosses the river on the property south of the dam. Every spring, Mr. Reed strings barbed wire fences across the river in order to keep his cattle from wandering up or down the river when crossing the river. One of the barbed wire fences runs across the river just north of the bridge but south of the dam. The other fence is strung across the most northerly boundary of the property. These fences are removed every fall and replaced in the spring. Both fences obstruct anyone attempting to canoe along this part of the river. In addition, canoeists wishing to travel the entire length of the river which passes through the property must portage around the dam. The most convenient portage takes them across the property. The Reeds consider those who take thisportage to be trespassers and have posted appropriate signs.
III The parties and these proceedings
Canoe Ontario is a non-profit corporation composed of a number of groups with a mutual interest in canoeing in Ontario. Mr. Greenacre is a canoeist who has canoed on the part of the river which passes through the Reed property, and wishes to do so in the future. The canoeists' standing has not been challenged by the Reeds.
The Reeds own and operate the farm described above. In opposing the canoeists' application, the Reeds are not motivated by petty selfishness. They live on this property and it is their firm belief that some of those individuals who choose to recreate along the river do not pay proper heed to the needs of those who live and work on the property adjoining the river. I accept Mr. Reed's evidence that his fences have been damaged, garbage has been left on his property, and on occasion, his family has been verbally abused by a small minority of those who use the river for recreational purposes. I am completely satisfied that the Reeds take the position that they do in a genuine effort to preserve the use and enjoyment of their home and farm.
I must also stress that there is no suggestion that Mr. Greenacre or anyone affiliated with Canoe Ontario has engaged in the discourteous and disorderly conduct described by Mr. Reed.
The Attorney-General was joined as a defendant because of his potential interest in the issues to be determined. He has taken no position in the litigation save to support the canoeists' contention with respect to the approach to be taken in defining the phrase "navigable waterway".
On the trial of the issue before me, the parties adduced evidence in the form of a joint document brief and certain videotapes. It was agreed that I could receive all of this material as evidence. It was also agreed that, with certain specified exceptions, the facts referred to in the material should be accepted by me as proved. In addition to the document brief and the videotapes, several affidavits were filed by the canoeists with the consent of the Reeds. Mr. Reed also testified.
IV The position of the parties
The Reeds contend that the part of the river which runs through their property is not a navigable waterway and that they own the riverbed by virtue of the terms of the original Crown grants. They say they are entitled to exercise control over access to that part of the river, and to construct fences, complete with fence posts sunk into the riverbed, across the river.
The canoeists assert that they are entitled to canoe along the river because it is a navigable waterway and is not subject to any proprietary interest on the part of the Reeds. The canoeists contend that the Reeds have improperly obstructed their right to navigate the river by the erection of the fences. They also argue that as the Reeds choose to keep and use the dam which is situated across the river, they are obligated to allow the canoeists reasonable access to their property so as to permit them to portage around the dam.
V Is the river a navigable waterway?
This case turns on whether the part of the river which passes through the Reeds' property is a "navigable waterway". The Reeds only have a proprietary interest over the river and its bed if the river is not a navigable waterway. This is so for two reasons. First, the Crown grants, which are the root of the Reeds' proprietary claim, reserve to the Crown all rights in all navigable waterways which pass within the lands. If the part of the river which passes through the Reeds' property is navigable, then title to the riverbed did not flow with the Crown grants. Secondly, s. 1 of the Beds of Navigable Waters Act, R.S.O. 1980, c. 40 provides:
1. Where land that borders on a navigable body of water or stream, or on which the whole or a part of a navigable body of water or stream is situate, or through which a navigable body of water or stream flows, has been heretofore or is hereafter granted by the Crown, it shall be deemed, in the absence of an express grant of it, that the bed of such body of water was not intended to pass and did not pass to the grantee.
Subject to certain exceptions which are not applicable here, the Act applies to land which was granted prior to its enactment. If the river is navigable, then this Act provides that the Reeds have no proprietary interest in the riverbed since the grants did not expressly grant the riverbed to their predecessors.
To determine whether the part of the river which passes through the Reeds' property is a navigable waterway, I must first review the historical information provided to me. By the latter part of the eighteenth century, the river served as a meeting ground for French traders and local Indians. Both travelled at least part of the river for trading purposes. By the turn of the nineteenth century, most of the river was reserved for the use of the Mississauga Indians. The land demands caused by immigration from the United States following the War of 1812 led to the surveying of lands adjoining the river, and to settlement along the river. In 1820, the Mississauga Indians gave up their rights to exclusive use of the river. During the next 30 years, the river was a focal point for a variety of commercial activities. Several dams were built to supply power for the flour mills, saw mills, and other enterprises which thrived along the river.
There is some indication that during the first part of the nineteenth century, logs for the saw mills were floated down various parts of the river. Apart from the logging business, it does not appear that the river was used for commercial traffic during this period of significant commercial development. The early proliferation of dams along the river, combined with the quick development of an effective system of roads, precluded the use of the river as a means of commercial transportation.
By the early part of the twentieth century, the commercial activity along the river had subsided. Gradually the dams fell into desuetude. Today, only the dam on the Reeds' property, which is used to generate electricity for the Reeds' personal needs, serves any functional purpose. All but one or two of the other dams have been removed either by nature of by man.
Apart from commercial activity, the river has been the focal point of various recreational pursuits over the years. At least two references to the use of the river for recreational canoeing are found in the material provided to me. In the brochure entitled "The History of the Credit River", the author writes:
Since the 1920's the Credit has been used extensively for recreational purposes. Canoeists have used the river in spring and summer months and snowmobilers have used it during the winter.
The brochure does not indicate what part of the river is being referred to in the extract quoted above.
A second brochure entitled "The Credit: Canoeing in Suburbia" contains the following passage:
For canoeists, the Credit is a springtime river. In the first flush of mouth water, its rapids and swifts can put up standing waves that will quicken the pulse of even an experienced white water paddler. In late March, white water kayak enthusiasts flock to the river at Streetsville for competition.
. . . . . By mid-April, the Credit has settled down to a more leisurely pace with enough ripples to provide good training for beginning river Canoeists. The most serious danger is the chilling effect of icy spring water. By mid-May, as the waters warm, the Credit is reduced to bouldery shallows and the canoeing season is virtually over. Summer trips are possible on parts of the river but be prepared to wade occasionally.
This brochure contains a detailed description of a canoe trip along the entire length of the Credit River including the part which passes through the Reeds' property. This author obviously considers the entire river suitable for canoeing during part of the year.
The affidavits filed by the canoeists attest to the suitability of the river for canoeing. Most of the affiants have canoed along the part of the river which passes through the Reeds' property at some point during the canoeing season. Most of them indicated that this part of the river was very suitable for canoeing in spring; while others indicated that it was suitable in the spring and fall; and a few indicated that it was suitable during the entire year.
Considering the historical information, the affidavits, the evidence of Mr. Reed, and the technical data concerning the rate of water flow and similar matters, I conclude that the part of the river which passes through the property provides enjoyable canoeing from late March through most of May; the possibility of limited and mostly unsatisfactory canoeing from June through September; and for the particularly hardy, some canoeing in October and November.
In summary, the material provided to me shows that the river has had various uses at various times. It was used as a mode of transportation in the latter part of the eighteenth century and in the early part of the nineteenth century. It was, for a brief time, a log floating route. By 1835, the river had no value as a commercial highway. By the early part of this century, it was used extensively, although seasonally, by recreational canoeists. They continue to use the river to this day.
I must now turn to the applicable law. The legal meaning of the phrase "navigable waterway" received considerable judicial attention in the late nineteenth century and in the early part of this century. Those authorities are carefully considered and analyzed in the scholarly judgment of Henry J. in Re Coleman and A.-G. Ont. (1983), 143 D.L.R. (3d) 608 at pp. 613-15, 27 R.P.R. 107 (Ont. H.C.J.). I have found his judgment most helpful as it deals with a waterway (the Bronte River) which is similar in many ways to the Credit River. I accept the following conclusions drawn by Henry J. from the earlier authorities:
(i) Navigability in law requires that the waterway be navigable in fact. It must be capable in its natural state of being traversed by large or small craft of some sort.
(ii) Navigable also means floatable in the sense that the river or stream is used or is capable of use for floating logs or log rafts or booms.
(iii) A river may be navigable over part of its course and not navigable over other parts.
(iv) To be navigable, a river need not in fact be used for navigation so long as it is realistically capable of being so used.
(v) A river is not navigable if it is used only for private purposes or if it is used for purposes which do not require transportation along the river (e.g., fishing).
(vi) Navigation need not be continuous but may fluctuate with the seasons.
(vii) Where a proprietary interest asserted depends on a Crown grant, navigability is initially to be determined as at the date of the Crown grants (in this case, 1821 and 1822).
If a waterway is held to be navigable then, absent valid legislative action to the contrary, the ownership of the riverbed does not rest in a private individual but in the Crown, and the public is entitled to travel the waterway: R. v. Moss (1896), 26 S.C.R. 322 at pp. 331-4. The concept of navigability is premised on the notion that certain waterways are akin to public highways and are viewed as being within the public domain: Rainy River Navigation Co. v. Watrous Island Boom Co. (1914), 6 O.W.N. 537 (Ont. S.C. App.Div.); Stephens v. MacMillan, [1954] O.R. 133 at p. 143, [1954] 2 D.L.R. 135 (H.C.J.). In a young country like Canada, where river routes are numerous, and were of central importance to the exploration, settlement, and commercial development of the country, it is not surprising that claims of public access to these rivers have fallen on sympathetic judicial ears: e.g., A.-G. Que. v. Fraser (1906), 37 S.C.R. 577 at pp. 596-8; affirmed [1911] A.C. 489 sub nom. Wyatt v. A.-G. Que; Fort George Lumber Co. v. Grand Trunk Pacific R. Co. (1915), 24D.L.R. 527 at pp. 529-31, 32 W.L.R. 309 (B.C.S.C.). In essence, the test for navigability developed in Canada is one of public utility. If a waterway has real or potential practical value to the public as a means of travel or transport from one point of public access to another point of public access, the waterway is considered navigable: Gordon v. Hall, [1958] O.W.N. 417, 16 D.L.R. (2d) 379 at pp. 382-3 (H.C.J.); Welsh v. Marantette (1983), 44 O.R. (2d) 137, 3 D.L.R. (4th) 401, 27 C.C.L.T. 113 (H.C.J.); Re Coleman and A.-G. Ont., supra, at pp. 617-18.
Many authorities, particularly those emanating from the province of Quebec (A.-G. Que. v. Mireault (1987), 46 R.P.R. 95 (Que. C.A.)); and the United States (U.S.A. v. State of Utah, 283 U.S. 64 (1931), at p. 76); limit the public utility test for navigability to situations where the transport is in the nature of commerce. It is not surprising that commercial usefulness has played a central role in determining the public utility of a waterway, since at one time water transport was almost entirely commercially motivated. I agree with Henry J. in Re Coleman and A.-G. Ont., supra, at p. 622, that commercialutility is not a sine qua non to navigability, although evidence of commercial use will be determinative of the question. If the purpose underlying the recognition of a public interest in certain waterways is analogous to that which recognizes the public interest in certain highways, then that purpose is not served by limiting navigability to cases involving commercial usage. A public highway may serve many public purposes other than a purely commercial one. For example, it may provide a valuable social and communication link between communities. Rivers on which people can readily travel can potentially provide the same link.
A distinction between public commercial use and public non-commercial use is also unrealistic. Many non-commercial uses can readily be turned into commercial endeavours. This case provides an example. If several individuals, for recreational purposes, canoe down the river, then their purpose is entirely non-commerical; however, if one individual, perhaps more experienced than the others, purports to operate a tour down the river and to charge individuals for canoeing the river with him, then the exact same trip becomes a commercial endeavour. Navigability should not depend on such personal considerations. Navigability should depend on public utility. If the waterway serves, or is capable of serving, a legitimate public interest in that it is, or can be, regularly and profitably used by the public for some socially beneficial activity, then, assuming the waterway runs from one point of public access to another point of public access, it must be regarded as navigable and as within the public domain.
I do not intend to hold that any body of water which, at some point for some brief instant, can be used by some segment of the public, for some legitimate public purpose is thereby a navigable or public waterway. If, however, the use is regular and has practical value, then seasonal limitations, or limits on the type or nature of the public utility do not remove that waterway from the public domain: Harrison v. Fite, 148 F. 781 (C.A. 8th Cir., 1906), at pp. 783-4; Ne-Bo-Shone Ass'n v. Hogarth 7 F. Supp. 885 (Dist. Ct. 1934), at pp. 889-90; affirmed in result 81 F. Supp. 70 (C.A. 6th Cir.).
On the evidence before me, the part of the river which runs through the Reeds' property was a public or navigable waterway as of 1822. Prior to that date, it was used for commercial traffic and logs were floated down the river. There is nothing in the evidence before me to suggest that it could not be used for commercial purposes in 1822. Whether it was in fact so used is not determinative. I am also satisfied that the river could have been used for legitimate recreational purposes as of 1822. That it was not so used until several decades later does not detract from the finding that it could have been so used. The river had public utility as of 1822. That public character remains to this day although the particular use to which the public puts the river has changed from commercial use prior to 1822 to a purely recreational use in the present day. Since the Crown grant excluded title to navigable waterways, the Reeds did not acquire title to any part of the river whichruns through that property, and they have no proprietary interest in the riverbed. The application of s. 1 of the Beds of Navigable Waterways Act effects the same result.
The plaintiffs are entitled to a declaration that the part of the river which runs through the Reed property is a navigable and public waterway and that the Reeds have no proprietary interest in the riverbed. It follows from this finding that the Reeds have no right to construct or maintain fences on the river which deny public access to the part of the river which runs through their property. The plaintiffs are entitled to a declaration to that effect. Having made that finding, I hasten to add that this does not prevent the Reeds from erecting structures designed to keep their cattle on course when crossing the river. My finding only precludes the erection of fences or similar structures on the river in a way which effectively denies public passage along the part of the river. It would not seem an insurmountable task to devise a structure which permitted canoeists to gain entry to the part of the river which runs through the property while at the same time limiting the movement of the cattle as they passed across the river. A well-marked fence with an appropriate gate or gates seems a possibility.
VI Do the canoeists have a right of portage across the Reeds' property?
I have held that the canoeists and other members of the public have the right to travel by boat along the river as it passes through the Reeds' property. Their passage is blocked by a dam constructed in 1825 and presently owned and operated by the Reeds. The canoeists seek an order declaring that they are entitled to go ashore onto the Reeds' property in order to pass around the dam. The canoeists do not suggest any specific route but presumably would be content with an order permitting them to enter upon the Reeds' property to the extent that it is necessary to go ashore on one side of the dam, pass around the dam and re-enter the river. The canoeists maintain that without a right to travel onto the Reeds' property to portage around the dam, they are effectively barred from using that part of the river.
The material provided to me does describe portage routes around the dam which do not involve going onto the Reeds' property; however, these are long and somewhat onerous. If these portage routes are followed, the canoeists also lose the opportunity to paddle along the river for a distance both above and below the dam.
It is clear that the order sought by the canoeists will constitute a significant intrusion on the Reeds' property rights. The order would grant access to the Reeds' property to an unlimited number of persons who could use the route at any time. Indeed, the order would not necessarily create one route, but would presumably leave it open to individual canoeists to determine what portage route was reasonable. The appropriate route may vary with the season, the rainfall, or the expertise and the energy of the individual canoeist. It could also vary with the type of craft being used. Nor does the order requested contemplate any compensation to the Reeds for this substantial interference with their property rights. It also leaves open the question of any responsibility or potential liability which may fall upon the Reeds if I declare that their property is subject to the right of way sought by the canoeists. The order requested would create a nebulous easement over the property which would doubtless lead to uncertainty.
There is no statutory provision which the canoeists can call in aid to support their contention. In the course of argument, reference was made to s. 62(4) of the Public Lands Act, R.S.O. 1980, c. 413. This section has no application since the property was not a "public land over which a portage had existed" prior to the sale of the land to the original owners.
There is no case-law directly on point which supports this part of the canoeists' claim. The canoeists have not attempted to mount an action in nuisance as was the case in many of the authorities relied on by them.
As I understand the canoeists' argument, they claim a right to portage across the Reeds' property exists because it is a necessary part of the right to navigate along the river and that without a right of portage, the right of passage or navigation cannot be fully enjoyed. They also argue that as the Reeds enjoy the benefit of the dam, it is just that they be required to surrender their property rights to the extent that it is necessary to allow canoeists to go around the dam.
Their argument amounts to a contention that the public right of navigation carries with it a right to enter upon private property to avoid obstructions to navigation even where the obstruction is not unlawful, and is not the responsibility of the property owner whose land will be entered and crossed. Certain public rights have been held to flow from or to exist with the public right of navigation. The right to anchor, to go ashore in an emergency, and perhaps the right to fish are examples of rights which have been found to co-exist with the right to travel along a navigable waterway: Gann v. Free Fishers of Whitsable (1865), 11 H.L.C. 192 at p. 207, 11 E.R. 1305 (H.L.); Coulson and Forbes on Waters and Land Drainage, 6th ed. (1952), pp. 68-71; Ne-Bo-Shone Ass'n v. Hogarth, supra, at p. 887; but see R. v. Robertson (1882), 6 S.C.R. 52 at. pp. 114-15. None present the potential for intrusion on the rights of a property owner which the right claimed by thecanoeists does.
Other cases recognize a limited right resting in individuals to access and cross another's property situated on a navigable waterway. These include cases where the property owner has consented to the access, or where he has created an obstruction which denies another riparian landowner access to the waterway, or where the claimant has acquired the right to access and cross another's property by prescription: McNeil v. Jones (1894), 26 N.S.R. 299 at pp. 303-4 (N.S.C.A.); Rice Lake Fir Co. Ltd. v. McAllister (1925), 56 O.L.R. 440 at p. 449, [1925] 2 D.L.R. 506 (C.A.); Marshall v. Ulleswater Steam Navigation Co. (1871), L.R. 7 Q.B. 166; Wood v. Esson (1883), 9 S.C.R. 239 at pp. 252-4; Iveagh v. Martin, [1961] Q.B. 232. These are cases of rights acquired by specific individuals. None produce the general right of way argued for in this case.
These same cases by implication deny any general right to enter the property of another in every case where entry is necessary to facilitate one's right of navigation. In Iveagh v. Martin, supra, Paull J. considered the rights of certain landowners whose passage to a navigable river was blocked by a quay which had been constructed on the navigable waterway. His Lordship held at pp. 273-4:
These being the rights of those who navigate vessels, one next has to consider the position if the owner of the foreshore erects on the foreshore and therefore at a place where there would otherwise be navigable water at certain states of the tide, a permanent building such as a quay. It seems to me that the rights of navigation which the public possess result in their having two rights in relation to such a quay. In the first place, in a proper case they may have the right in an action properly constituted to obtain a mandatory injunction ordering the owner of the quay to remove the quay on the ground that it seriously interferes with the rights of navigation. ... With regard to the second right, one has, I think, to consider the land which lies beyond the quay. A part of the rights of navigation is, in my judgment, the right to land on or embark from any part of the land adjoining the foreshore but only if there is a right to go upon that land. If the quay on the foreshore obstructs that being done, then there is the right to go upon the quay onpayment of a reasonable toll in order to reach that land or reach the vessel.
(Emphasis added.)
In this passage, Paull J. premises the right to access another's property on an individual's private property rights and not on any implied right flowing from the public right of navigation.
In Ne-Bo-Shone Ass'n v. Hogarth, supra, the trial judge, quoting from an earlier decision of the Supreme Court of Michigan, said at. p. 887:
Pine River is navigable. In its waters, the people have the common right of fishing. The plaintiff, though owner of the soil, has no greater fishing rights than any other citizen. The rights are equal and correlative. So long as water flows and fish swim in Pine River, the people may fish at their pleasure in any part of the stream, subject only to the restraints and regulations imposed by the state. ... Of course in exercising this right, people cannot go upon the uplands of riparian owners in order to gain access to the water. If they do that, they are guilty of trespass.
(Emphasis added.)
In Lyon v. Fishmongers' Co. (1876), 1 App. Cas. 662 at p. 671, Lord Cairns clearly drew the distinction between rights which rest with the public as a result of the navigability of a waterway and rights which may rest with an individual landowner:
Unquestionably, the owner of a wharf on the river bank has, like every other subject of the realm, the right of navigating the river as one of the public. This, however, is not a right coming to him qua owner or occupier of any lands on the bank, nor is it a right which, per se, he enjoys in a manner different from any member of the public. But when this right of navigation is connected with an exclusive access to and from a particular wharf, it assumes a very different character. It ceases to be a right held in common with the rest of the public, for other members of the public have no access to or from the river at the particular place; and it becomes a form of enjoyment of the land and of the river in connection with the land the disturbance of which may be vindicated in damages by an action or restrained by an injunction.
(Emphasis added.)
Similarly, in Marshall v. Ulleswater Steam Navigation Co., supra, Blackburn J. said at p. 172:
It is well-established law, that where there is a public highway the owners of the land adjoining thereto have a right to go upon the highway from any spot on their own land. They cannot, of course, pass over the soil of another without his leave...
(Emphasis added.)
I conclude that the public right of passage does not carry with it a public right of portage across another's property. The public right permits passage along the river to the extent that passage is possible. If a natural obstruction temporarily or permanently prevents passage, the right of public passage remains although it may not be exercisable. Frustration of the ability to pass along the waterway cannot give rise to a separate and distinct right to go onto the property of a private landowner. One might well respond that the obstruction in this case is not a natural one but is a man-made one. It is, but I have no evidence before me from which I could conclude that the dam was unlawfully constructed, constitutes a nuisance, or that the Reeds are in contravention of any law by operating the dam. Indeed, as I understand the canoeists' position, they do not claim any right to have the dam removed; nor do they suggest that the Reeds' maintenance and use of the dam is actionable or unlawful. The silence of the Attorney-General on this aspect of the case is also instructive. Given the record before me and the position of the parties, I see no reason for treating the dam any differently than I would a rapid or a beaver dam. Absent a successful attack on the Reeds' right to maintain and operate the dam, the canoeists' argument comes down to a contention that the Reeds should be made to sacrifice part of their property rights so the canoeists can more fully enjoy their public right of navigation. I can see no reason for such court-imposed largesse.
I decline to make any order declaring a right of portage across the Reeds' property.
A declaration in terms consistent with these reasons may issue. Counsel did not address the question of costs. In light of the result, I propose to make no order as to costs, subject to any submissions counsel may wish to make before taking out the formal order.
Judgment accordingly.
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Ontario High Court Ruling on the definition of Navigability of a Creek
Summary:
The plaintiffs owned a parcel of land which was bisected by a creek. Their title derived from the original Crown patent which reserved all navigable waters therein. The creek was a shallow, fast-moving stream with a bottom predominantly of cobble-stones, but it had some natural obstacles in the form of rapids, falls and boulders. These occurred also at the site of the plaintiffs' land. The width of the creek varied from 26 to 60 ft.; its depth varied seasonally from one to five feet. In the past the stream had been used for navigation by canoes and other shallow craft and for floating logs on a seasonal basis. The latter was a commercial use, the others probably were not, since the area was served by a good road system when it was settled. More recently, the creek at the site of the plaintiffs' land and elsewhere was used for recreational purposes by shallow craft and, in the winter, [page609] by snowmobiles, skiers and others. The plaintiffs, being concerned about their ability to sever the lands on either side of the creek, brought an application to determine whether they owned the bed of the creek.
Held, the creek was navigable; hence the bed was vested in the Crown.
The issue whether a stream is navigable in law must be determined as of the date of the Crown patent. However, modern uses of the stream may be taken into consideration. Navigability is determined by the following criteria: (1) A stream is navigable in law if it is navigable in fact; (2) a stream is navigable in fact if it is capable in its natural state of being traversed at least by small craft, or even, in the Canadian context, if it is floatable in the sense that it is used to float logs, log rafts and booms; (3) the stream does not in fact have to be used for navigation so long as it is realistically capable of being so used; (4) the stream may be navigable over part of its course and not navigable over other parts and hence its navigability may be determined independently at different locations; (5) as distinct from the law of Quebec, the test of navigability does not, in Ontario, require that the stream be capable of navigation in furtherance of trade and commerce. Rather, the test identifies a lake or stream as a public water over which the public have an inherent right to pass, whether for commercial or non-commercial purposes. Moreover, the test remains open to definition in light of modern needs of the public; (6) the essence of the test of navigability in law is that a stream be a public aqueous highway used or capable of use by the public.A stream is not navigable if it is used only for the private purposes of the owner; (7) navigation need not be continuous, but may fluctuate seasonally; (8) interruptions to navigation of a natural kind, such as rapids, which may, by improvements, be readily circumvented, do not render the stream non-navigable. Moreover, a stream not navigable by reason of natural obstructions may become so as a result of artificial improvements.
On the facts, the creek was navigable in fact and in law at the site of the plaintiffs' land at the date of the Crown patent, either on the basis of the traditional test of navigability, or the test as modified by modern conditions and considerations. Hence, title to the bed did not pass the grantee. This conclusion was confirmed by s. 1 of the Beds of Navigable Waters Act, R.S.O. 1980, c. 40, which declares, with retrospective effect, that the beds of navigable waters do not pass to grantees of the lands through which they pass in the absence of an express grant.
RE COLEMAN et al. AND ATTORNEY-GENERAL FOR ONTARIO et al.
143 D.L.R. (3d) 608
Ontario High Court of Justice Henry J.
March 1, 1983
Deeds ? Crown patents ? Construction ? Crown patent conveying lands to grantee but reserving navigable waters therein ? Whether stream running through lands navigable ? Date of determination ? Beds of Navigable Waters Act, R.S.O. 1980, c. 40, s. 1.
Real property ? Beds of waterways ? Ownership ? Crown patent conveying lands to grantee but reserving navigable waters therein ? Whether stream running through lands navigable ? Whether bed vested in Crown or grantee ? Beds of Navigable Waters Act, R.S.O. 1980, c. 40, s. 1.
Waters and water courses ? Navigability ? Applicable test.
Collins v. Gerhardt (1926), 237 Mich. 38; Ne-Bo-Shone Ass'n, Inc. v. Hogarth et al. (1934), 7 F. Supp. 885; affd 81 F. (2d) 70, apld
Gordon v. Hall et al. (1958), 16 D.L.R. (2d) 379; Bell v. Corp. of Quebec (1879), 5 App. Cas. 84, distd
Keewatin Power Co. v. Town of Kenora (1906), 13 O.L.R. 237; vard 16 O.L.R. 184; A.-G. Que. v. Fraser (1906), 37 S.C.R. 577; affd sub nom. Wyatt et al. v. A.-G. Que., [1911] A.C. 489; A.-G. Que. v. Scott et al.; City of Hull v. Scottet al. (1904), 34 S.C.R. 603; Leamy et al. v. The King (1916), 54 S.C.R. 143, 33 D.L.R. 237; Tadenac Club Ltd. v. Hebner et al., [1957] O.R. 272, 9 D.L.R. (2d) 282, consd
Other cases referred to
Stephens et al. v. MacMillan et al., [1954] O.R. 133; Rice Lake Fur Co. Ltd. v. McAllister (1925), 56 O.L.R. 440, [1925] 2 D.L.R. 506; "The Montello" (1974), 20 Wallace 430; Harrison et al. v. Fite et al. (1906), 148 F. 781; Moore v. Sanborne et al. (1853), 2 Mich. 520 [page610]
Statutes referred to
Beds of Navigable Waters Act, 1911 (Ont.), c. 6
Beds of Navigable Waters Act, R.S.O. 1980, c. 40, s. 1
Navigable Waters Protection Act, R.S.C. 1970, c. N-19
Planning Act, R.S.O. 1980, c. 379, s. 29 (am. 1981, c. 15, s. 1)
Rules and regulations referred to
Rules of Practice (Ont.), Rule 611
APPLICATION to determine whether the applicants owned the bed of a stream which passed through their land.
H. W. Sterling, for applicants.
P. W. Lockett, for respondent, Attorney-General for Ontario.
HENRY J.:? The applicants, Mr. and Mrs. Coleman, own a parcel of land in the Regional Municipality of Halton through which passes a watercourse known as Twelve Mile Creek or Bronte Creek. They ask the court to determine what interest they have in the bed of this stream which bisects their lands.
The critical issue is whether the stream is navigable in law; if it is, the bed was reserved in the original grant from the Crown in May, 1827, and did not pass to the grantee. This result is confirmed by the declaratory provision in s. 1 of the Beds of Navigable Waters Act, R.S.O. 1980, c. 40, which provides:
1. Where land that borders on a navigable body of water or stream, or on which the whole or a part of a navigable body of water or stream is situate, or through which a navigable body of water or stream flows, has been heretofore or is hereafter granted by the Crown, it shall be deemed, in the absence of an express grant of it, that the bed of such body of water was not intended to pass and did not pass to the grantee.
In my opinion this originating motion may properly be brought under Rule 611 of the Rules of Practice as it involves the construction of the instrument of Crown grant, assisted by the terms of s. 1 of the Act that I have cited.
The applicants gave notice to the Attorney-General of Ontario who was represented by counsel on return of the motion. Counsel for the Attorney-General took no firm position but gave considerable assistance to the court. No notice was given to other persons except the respondents Schieck (adjacent owners) who did not appear, and no issue was raised as to this point. By way of evidence I was offered an affidavit by Mr. Coleman as to present facts and background history which were accepted as common ground. After hearing argument by both counsel I reserved judgment. In the course of reviewing the jurisprudence, it became apparent that in the decided cases the issues of fact relating to navigability of waters and watercourses have usually been deter- [page611] mined after a trial on viva voce evidence. I therefore felt obliged to consider whether I should order the trial of an issue. I accordingly consulted counsel informally as to the availability of further evidence bearing on the issue of navigability of Bronte Creek, not only at the Coleman site but throughout its length, and historically as well as currently.
Through the co-operation of counsel and the owners I have now been furnished with an affidavit of Richard Laverne Tapley, District Lands Administrator of the Cambridge District of the Ministry of Natural Resources for the Province of Ontario, sworn December 3, 1982, who has made an historical and current on-site survey of the stream; he has provided a very helpful report accompanied by maps and photographs. Counsel for Mr. and Mrs. Coleman also submitted further information of an historical nature, together with current photographs. I have also received the Colemans' comments with respect to Mr. Tapley's report; they do not agree with all of his measurements, principally with respect to average depth of the stream, and with respect to current use by small craft of the stream at the site. There is no issue of credibility here and neither counsel indicates a desire to cross-examine on the material filed. I prefer the information provided by the Colemans where it is based on their personal observation on a year-round basis over that of Mr. Tapley who has not had the opportunity of such comprehensive observations, his survey being made in October of 1982.
I have therefor before me an affidavit of Mr. Coleman sworn November 24, 1981, and further information supplied by him on December 3, 1982; the affidavit of Richard Tapley with the report of his recent survey sworn December 3, 1982, and the applicants' statement of facts which is not disputed. Among the material filed are some modest historical writings, some statements based on folklore, old maps of the area, current photographs of the stream at various seasons at the site, and current aerial photographs and maps of the stream over its length.
I am informed that the present objective of the applicants in bringing this motion is to ascertain whether they have a proprietary interest in the bed of the stream so that, in the event they should sever their lands in future on either side of the stream, they would be required to obtain consent pursuant to s. 29 of the Planning Act, R.S.O. 1980, c. 379. There is no indication that there is here raised any question that might require the intervention of the Attorney-General of Canada for purposes of the Navigable Waters Protection Act, R.S.C. 1970, c. N-19, nor is the [page612] ownership of the bed of the stream by any other owners than the Colemans before me. I have therefore decided in the interest of minimizing costs to the applicants to dispose of the matter under Rule 611 without the trial of an issue.
The lands at present owned by Mr. and Mrs. Coleman were originally granted by the Crown by deed executed in the name of King George IV under the great seal of the Province of Upper Canada by the hand of Sir Peregrine Maitland, then Governor of the province, on May 14, 1827, to William Fitz ... [illegible], schoolmaster and late private in the Canadian Fencibles. Reserved from the grant of the lands were "all navigable waters within the same, with free access to the beach by all vessels, boats and persons". What is now known as Bronte Creek (or Twelve Mile Creek to local inhabitants) flowed through the lands granted. In due course a portion of the lands was conveyed by the successor in title to the Colemans by deed dated September 13, 1977. Approximately 1,200 ft. of Bronte Creek passes through the Colemans' lands. That deed is given in the usual form, "subject to the reservations, limitations, provisos and conditions expressed in the original grant thereof from the Crown". The deed was registered in the Land Registry Office for the Registry Division of the Regional Municipality of Halton as instrument No. 465985.
It is my opinion that the reservation in the Crown grant respecting navigable waters when read with the declaratory provisions of s. 1 of the Beds of Navigable Waters Act which has retrospective effect, excludes from the Crown grant and the deed to the Colemans the bed of Bronte Creek, if it is a "navigable" water or stream; clearly, the bed of the stream was not expressly granted.
It is my opinion that the issue whether the stream is navigable in law must be determined as of the date of the Crown grant; it is at that time that title to the bed of the stream passed to the grantee or was reserved to the Crown as the case may be. If title did not then pass to the original grantee, it has not subsequently been conveyed by deed or operation of law to any subsequent owner.
The law relating to navigability of waters and watercourses is not free from difficulty. Whether or not a lake, river or stream is navigable is a question of law and also of fact. The issue arises in several ways in the jurisprudence, principally: (a) to determine proprietary rights in the bed or solum;(b) to determine the right of the public to use the waters for hunting and fishing; [page613] (c) to determine the right of the public to use the waters as a "highway" for commerce or recreation;(d) to determine the lawfulness of obstructions to navigation, as an tort or under the Navigable Waters Protection Act.
The common law in England distinguishes between tidal waters, which are navigable and accessible to the public for passage over the surface, the ownership of the bed being vested in the Crown, and inland waters (i.e., non-tidal) in which case a grant by the Crown to a riparian owner automatically conveys to him the bed of the inland water adjacent to the lands conveyed while the public right of navigation is preserved.
Those principles have been applied in Ontario, particularly by the decision in Keewatin Power Co. v. Town of Kenora (1906), 13 O.L.R. 237 (H.C.J.); varied 16 O.L.R. 184 (C.A.), which held the Great Lakes and the Winnipeg River to be inland waters as to which a riparian owner was prima facie presumed to have title to the solum. This rule of law has now been modified by the Beds of Navigable Waters Act originally enacted by 1911 (Ont.), c. 6. It is an essential attribute of a waterway that is navigable in law that the public may use it as of right for purposes of passage as a public waterway or highway, even if the title to the bed is in the riparian owner or owners.
It is noteworthy that the English common law rules have been adapted to particular requirements of the North American geography and economics, both in Canada and the United States, and that Ontario courts have not hesitated to cite U.S. decisions with approval: see Keewatin Power v. Kenora, supra, and Gordon v. Hall et al. (1958), 16 D.L.R. (2d) 379 (Ont. H.C.).
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: A.-G. Que. v. Fraser (1906), 37 S.C.R. 577; affirmed sub nom. Wyatt et al. v. A.-G. Que., [1911] A.C. 489 (P.C.); A.-G. Que. v. Scott et al.; City of Hull v. Scott et al. (1904), 34 S.C.R. 603, and Keewatin v. Town of Kenora, supra. [page614] (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: Leamy et al. v. The King (1916), 54 S.C.R. 143, 33 D.L.R. 237, and the Fraser case, supra. (I note here that this development follows the corresponding development of the law in the United States.)(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: the Fraser case, supra, and the Leamy case, supra.(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: the Keewatin case, supra, and Tadenac Club Ltd. v. Hebner et al., [1957] O.R. 272, 9 D.L.R. (2d) 282 (Gale J., obiter).(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: Leamy v. The King, supra; A.-G. Que. v. Fraser, supra. This was also the test in some of the earlier United States cases. So far as the law of Ontario is concerned, the commercial test was alluded to in Gordon v. Hall, supra, per McRuer C.J.H.C., obiter, but as I shall indicate, I do not consider the "commercial" test an element of the law of Ontario.(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: see Gordon v. Hall, supra, citing U.S. authorities at pp. 382-3.(7) Navigation need not be continuous but may fluctuate seasonally: see Gordon v. Hall, supra.(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: see Keewatin, supra, and Stephens et al. v. MacMillan et al., [1954] O.R. 133 (H.C.). [page615] (9) It would seem that a stream not navigable in its natural state may become so as a result of artificial improvements: see per Mulock C.J.O. in Rice Lake Fur Co. Ltd. v. McAllister (1925), 56 O.L.R. 440 at pp. 449-50, [1925] 2 D.L.R. 506 at p. 513, cited obiter by Gale J. in the Tadenac case, supra, at p. 275 O.R., p. 285 D.L.R.; see also, Stephens v. MacMillan, supra.
I consider now the physical features of Bronte Creek. This stream, which is fed by a number of tributaries, has its principal source in Puslinch Township, near the intersection of present Highways 6 and 401 whence it meanders generally south-easterly to its mouth in Lake Ontario at the Town of Bronte, a distance of approximately 35 miles. It passes through the historic communities of Cedar Springs and Lowville, before reaching the Colemans' property. It borders part and bisects part of the Coleman property for a distance of approximately 1,200 ft. Thence it continues southerly to and through Bronte Creek Provincial Park whence it enters Lake Ontario.
Bronte Creek is a shallow, fast-moving stream with a bottom predominantly of cobble-stones. It has some natural obstacles in the form of rapids and boulders. There are at present some man-made obstructions which are located upstream from the Coleman's lands. The stream is generally known for trout fishing.
At the site of the plaintiffs' land (where the only precise data are presented) the stream is fast-moving, contains several rapids and natural falls and some boulders, but the bottom is predominantly cobble-stones. Its width varies from 26 to 60 ft. The depth varies seasonally from one to five feet. There are several rapids throughout this stretch; at three of these points the depth was measured at less than one foot in October, 1982. The man-made obstructions mentioned are not found on the Coleman stretch or downstream from it; they are located upstream from Lowville.
Bronte Creek has been in the past, and is now capable of navigation by canoes and other shallow craft on a seasonal basis, at least from Lowville to its mouth in Lake Ontario (including the Colemans' lands) when water levels are high enough to clear the natural obstacles such as rapids. There is no evidence that boats or other craft were used to transport freight or produce by the early settlers; the early development of a good network of roads made this unnecessary. However, in the early 1800s sawmills and grist mills, powered by the stream, were established. One of these, the Dakota mill, was located six miles upstream from Lowville; the second was established at Lowville, and a third was [page616] established on the lands now owned by the Colemans. Bronte Creek was used to float logs from upstream farms and timberland to these mills.
I conclude that at the time of the Crown grant of the Colemans' lands Bronte Creek, at that site, was commercially floatable; it is probable that it was also capable of seasonally moving farm produce and articles of commerce in shallow boats, scows or rafts, had the developing road system not provided a better alternative. The stream was therefore navigable in law and the title to its bed did not pass to the grantee from the Crown.
The conclusion I have reached satisfies the legal test of navigability adopted by Canadian courts (including the law of Quebec), that is, navigability in fact, by any mode of craft, and capability of use as a highway for trade and commerce. I have also applied the test of floatability hitherto applied by the Supreme Court of Canada in relation to the law of Quebec. I have no hesitation in applying the latter to situations in Ontario where the same considerations of the timber trade apply. All these tests are consistent with the earlier U.S. cases, such as "The Montello" (1974), 20 Wallace 430; Harrison et al. v.Fite et al. (1906) 148 F. 781 at pp. 783-4; Moore v. Sanborne et al. (1853), 2 Mich. 520; Collins v. Gerhardt (1926), 237 Mich. 38.
I am persuaded, however, that in Ontario, navigability in law ought to be determined according to a less restrictive test in the light of modern conditions which, in recent years, have seen extensive use of lakes, rivers and streams for non-commercial purposes. It is common knowledge that in recent decades the myriad lakes and streams of this province are increasingly used for recreational purposes in the form of swimming, boating, canoeing, the use of paddle-boats and inflatable rafts, kayaks, windsurfers, white-water canoeing and rafting, as well as, in winter, cross-country skiing, snowshoeing and snowmobiling. It is even possible that some of these activities were practised by early settlers. (I do not include here such purposes as fishing, and use of the waters by riparian owners for irrigation and power for the mills which is a different subject-matter from the use of waterways for passage.) In particular I am asked by Mr. Lockett to consider applying the test of navigability in fact as identifying a lake, river or stream as public water over which the public have an inherent right to pass, whether for commercial or non-commercial purposes. In the State of Michigan this developing concept was the subject of the decision in Ne-Bo-Shone Ass'n, Inc. v. Hogarth et al. (1934), 7 F. Supp. 885, affirmed 81 F. (2d) 70, a [page617] case involving fishing rights where Raymond D.J. after reviewing the development of the jurisprudence said, at pp. 888-9:
Much of the difficulty in analysis of the various cases and in application of the principles announced arises from the failure in some instances to distinguish between the so-called "test" and the object of the test. The human mind is prone to confuse definitions with the thing defined, symptoms with the disease, theology with religion, and descriptions with the thing described. By too close attention to the bait the game escapes. This tendency has been noted by the Supreme Court in the class of cases here being considered. In the case of The Genesee Chief v. Fitzhugh, 12 How. (53 U.S.) 443, 455, 13 L. Ed. 1058, Chief Justice Taney said: "And as the English definition was adopted in our courts, and constantly used in judicial proceedings and forms of pleading, borrowed from England, the public character of the river was in process of time lost sight of, and the jurisdiction of the admiralty treated as if it was limited by the tide. The description of a public navigable river was substituted in the place of the thing intended to be described. And under the natural influence of precedents and established forms, a definition originally correct was adhered to and acted on, after it had ceased, from a change in circumstances, to be the true description of public waters." (Italics by the court.) The distinction sought by the variously stated tests is that between public and private waters. In England, the test was whether or not the tide ebbed and flowed. In America, navigability was at one time generally regarded as the criterion, and later, in the states where logging and lumbering became animportant commercial enterprise, floatability of logs was made the test. It is to be noted that, while navigability was made the guide as to what constituted public waters, it was not made the test of the scope of the public use of such waters. While floatability was often stated to be the test of navigability, it seems apparent that, in fact, it was not so. The very purpose for the change of test was to classify as public waters streams which were not commercially navigable but which were within the test of floatability. If these streams had been navigable, no need for a more inclusive test would have arisen. The real purpose of a change of test was to apply a broader definition to bring within the scope of public waters, streams and lakes which under former definitions would have been regarded as private. There is as much reason for saying that, when the test of public waters was limited to navigability, the only purposes for which such streams could be used were those of navigation and commerce, as to say that, when the test is floatability, the only purpose for which the stream to which the test is applicable may be used is the floating of logs. While the courts have frequently said that floatability is a test of navigability, it is clear that what was intended was that floatability is a test of whether the waters to which the test is applied are public or private. Because some waters are public, certain rights attach thereto. These rights are not limited by the test by which the nature of the waters is determined but to the rights incident to the characterization as public of the stream or body of water.
The court held that a stream of average depth of two-and-a-half feet and average width of 50 ft., these measurements varying considerably in different parts of the stream and in different seasons, was a public water because it had been used for the [page618] public purpose of floating logs and, accordingly, it could be used for other public purposes, inter alia, fishing. The decision was upheld in the Circuit Court of Appeals, Sixth Circuit, in Ne-Boo Shone Ass'n, Inc. v. Hogarth et al. (1936), 81 Fed. Rep. (2d) 70. I quote from this judgment at p. 72:
We come finally to the inland lakes cases cited by the appellee. Giddings v. Rogalewski, 192 Mich. 319, 158 N.W. 951, 953; Winans v. Willetts, 197 Mich. 512, 163 N.W. 993; Pleasant Lake Hills Corporation v. Eppinger, 235 Mich. 174, 209 N.W. 152. Though these cases deal with private lakes and not with rivers, they expressly or inferentially reaffirm the test of navigability applied in Moore v. Sanborne. If it be said that they discard that test in view of the fact that the lakes may have sufficient water capacity for the floating of logs or even of small boats, it is to be noted that the test was not so limited. The original doctrine applied the criterion of floatability to rivers as a test of their navigability only where they might be used as highways of commerce. An inland lake wholly surrounded by private property, and having no navigable outlet to other waters of the state, cannot be said to constitute a highway of commerce except in the most limited and restricted sense. This was clearly pointed out by the court in Giddings v. Rogalewski, where it was said, "The true test is whether the waters under consideration are capable of being used by the public as thoroughfares or highways for purposes of commerce, trade, and travel -- of affording a common passage for transportation and travel by the usual and ordinary modes of navigation," citing Moore v. Sanborne, supra.
In Bell v. Corp. of Quebec (1879), 5 App. Cas. 84, a case originating in the courts of Quebec, the Privy Council appeared to consider the test of commercial utility as peculiar to the law of France. The Board said, at p. 93: These general definitions of Daviel [Trait? des Cours d'Eaux] and Dalloz [R?p. tit. "Voirie par eau"] shew that the question to be decided is, as from its nature it must be, one of fact in the particular case, namely, whether and how far the river can be practically employed for purposes of traffic. The French authorities evidently point to the possibility at least of the use of the river for transport in some practical and profitable way, as being the test of navigability.
This approach in my opinion places in proper perspective the common law of England which was concerned to distinguish between public and private waters. I have not been referred to any decision that imported the concept of commercial use of inland waters as a test of the public character of those waters; that test appears to have been adopted by the Supreme Court of Canada as applicable to waterways in the Province of Quebec as a derivative of the law of France (see A.-G. Que. v. Fraser (1906), 37 S.C.R. 577, and Leamy et al. v. The King (1916), 54 S.C.R. 143, 33 D. L.R. 237), but it does not necessarily follow that those decisions are part of the law of Ontario. In Keewatin Power Co. v. Town of Kenora (1906), 13 O.L.R. 237, the decision was that the common [page619] law of England was adopted in Ontario so as to declare the Great Lakes and the Winnipeg River to be inland waters, and so in the public domain for navigation, and not limited, so far as I can see, by the trade and commerce test, although the waters in question were found to be navigable for commercial purposes. The judgment cites "The Montello", supra, where use of the waters for commerce was an integral element of the test. It does not appear to me that the commercial aspect of navigation was an issue to be decided in the Keewatin case; commercial viability was simply an acknowledged fact. Under the common law as I see it, navigability for commercial purposes was simply evidence that the watercourse was navigable in fact; it was not an essential condition of navigability in law: see Angell, A Treatise on the Law of Watercourses, 7th ed. (1877), p. 706; and 39 Hals., 3rd ed., p. 534.
In Tadenac Club Ltd. v. Hebner et al., [1957] O.R. 272, 9 D.L.R. (2d) 282, which concerned the right to fish, Gale J. did not find it necessary to decide whether the stream in question was navigable in law. He referred obiter to the passage in "The Montello", supra, and while not adopting it expressed the view that if the waters had in fact been used for commerce he would be inclined to agree that they were navigable in the legal sense.
In Gordon v. Hall et al. (1958), 16 D.L.R. (2d) 379, McRuer C.J.H.C. dealt with the right of a member of the public to use a private lake for fishing, swimming and boating. He held that the lake was not navigable in law. At pp. 382-3 he said:
Without entering upon the task of defining "navigable waters" I think it is clear that the small lake here in question is not a navigable water. In the first place, to be regarded as a navigable water, it must have something of the characteristics of a highway, that is, it must afford a means of transportation between terminal points to which the members of the public have a right to go as distinct from a means of transportation between one private terminus and another. In A.-G. Que. v. Fraser (1906), 37 S.C.R. 577 at p. 597, Girouard J. said: "The test of navigability is its utility for commercial purposes." This is a concise statement of the test applied in the American Courts. In Harrison et al. v. Fite (1906), 148 F. 781, Hook J., in delivering the opinion of the Circuit Court of Appeals, stated the American law in this way at pp. 783-4: "To meet the test of navigability as understood in the American law a water course should be susceptible of use for purposes of commerce or possess a capacity for valuable floatage in the transportation to market of the products of the country through which it runs. It should be of practical usefulness to the public as a public highway in its natural state and without the aid of artificial means. A theoretical or potential navigability, or one that istemporary, precarious, and unprofitable, is not sufficient. While the navigable quality of a water course need not be continuous, yet it should continue long enough to be useful and valuable in transportation; and the [page620] fluctuations should come regularly with the seasons, so that the period of navigability may be depended upon. Mere depth of water, without profitable utility, will not render a water course navigable in the legal sense, so as to subject it to public servitude, nor will the fact that it is sufficient for pleasure boating or to enable hunters or fishermen to float their skiffs or canoes. To be navigable a water course must have a useful capacity as a public highway of transportation." This would appear to be the accepted statement of American law. See Best v. State (1929), 279 P. 388, and U.S. v. Ladley (1930), 42 F. (2d) 474. Without presuming to decide what a navigable water is for all purposes I have no difficulty in coming to a conclusion that there is no authority for holding that this small lake in question comes within the tests laid down.
This is the only decision of an Ontario court to which I have been referred that could be said to apply the test of commercial use in determining navigability in law. That case I believe may be distinguished from the case at bar. The water in question was a land-locked lake about 300 yds. in width and about 15 acres in area. It had not historically been used for navigation, it was a "private" lake entirely surrounded by the lands of the owner; it was in no sense a public highway, being capable of passage only between points on the owner's lands. The decision can stand without application of the commerce test. Moreover, the applicability of the Supreme Court of Canada decision in the Fraser case to Ontario, in view of its derivation from the law of France, does not appear to me to have been raised. It may also be questioned whether the United States decisions cited clearly reflect the state of the U.S. law in 1958. The decision in Collins v. Gerhardt in 1926 (reversing the judge of first instance on a writ of error) puts the law of Michigan differently (at pp. 42-4):
In view of modern social and economic conditions, and the flexibility of the common law in adapting itself to the changing needs of the people, we shall not consider the term navigability in a too technical commercial sense, or seek out some ancient test in determining if Pine river belongs in the class legally regarded as public waters. It has been said that: "The right of the public use in American rivers and streams depends, not upon their navigability, in the technical sense of the term, as defined by the common law." Carter v. Thurston, 58 N.H. 104 (42 Am. Rep. 584). And: "If under present conditions of society, bodies of water are used for public uses other than mere commercial navigation, in its ordinary sense, we fail to see why they ought not to be held to be public waters, or navigable waters, if the old nomenclature is preferred." Lamprey v. State, 52 Minn. 181, 199 (53 N.W. 1139, 18 L.R.A. 670, 38 Am. St. Rep. 541). The common law relative to the navigability of waters has never been wholly adopted by the courts of this State. As has been said, it is not adaptable to our conditions and circumstances. If it had been adopted neither our Great Lakes nor our largest rivers could be classed as navigable. At [page621] common law only the sea and those rivers in which the tide ebbed and flowed were navigable. But above the ebb and flow of the tide some rivers were capable of floating vessels and were valuable in carrying the trade and commerce of the country. These rivers were not legally navigable but were characterized as navigable in fact. In Michigan we have no waters in which the tide ebbs and flows, but we have lakes and rivers which would meet the test applied by the common law to waters navigable in fact. The test which the common law applied to determine whether rivers were navigable in fact was originally used in this country to determine if they were navigable in law. Here, every stream that is navigable in fact is navigable in law. So our first understanding of what constituted navigability in a river was whether it had the capacity for carrying boats and accommodating commerce and travel. But, in the settlement and development of this State, it soon became apparent that the people had other uses for the rivers and streams. There came the lumber industry and a demand for the use of the rivers for the floatage of logs and rafts. The demand was resisted by the riparian proprietors, who claimed that the only use the public could make of the rivers and streams was in navigation by boats. This court met the situation by declaring all rivers navigable and public which in their natural state were capable of floating logs, boats and rafts. Moore v. Sanborne, 2 Mich. 519 (59 Am. Dec. 209). In that case the court said: "It was contended in argument, in behalf of the plaintiff in error, that the capacity of a stream to float logs and rafts, was no criterion of the public right of servitude; but that to render a river a public highway, it must be susceptible of navigation by boats. But this, we apprehend, is too narrow a rule upon which, in this country, to establish the rights of the public, and as already intimated, such is not the rule in any of the States. The servitude of the public interest depends rather upon the purpose for which the public requires the use of its streams, than upon any particular mode of use." Thus, it appears that early in the history of the State the common-law rule relative to the navigability of rivers was enlarged to embrace all streams having a capacity to float logs and rafts; and this was done to meet the needs and necessities of the people. Moore v. Sanborne, supra, was decided in 1853.During the long period that has followed it is not surprising to find in the judicial opinions of the court expressions of dicta from eminent common-law jurists, questioning the soundness of the principles enunciated in that case. But the Sanborne Case has never been overruled. There is no reason why it should be. It is in harmony with the judicial decisions of other States where similar conditions exist. It lays down a sensible rule based on the necessities of the people and saves for them all of the valuable public uses of which their rivers are capable. Justice COOLEY recognized this rule in his great work on Constitutional Limitations, and states it as follows: "If a stream is of sufficient capacity for the floatage of rafts and logs in the condition in which it generally appears by nature, it will be regarded as public, notwithstanding there may be times when it becomes too dry and shallow for that purpose." Cooley's Constitutional Limitations (7th Ed.) p. 861.
I conclude therefore that the test of navigability, or as I consider it better expressed, the public character of watercourses [page622] in Ontario, remains open to definition in the light of the modern needs of the public.
According to the material before me, Bronte Creek at and in the vicinity of the Coleman site has in recent memory and currently been used for canoeing, and rubber-boating, such craft being launched at Lowville and travelling down the stream through the Colemans' property and beyond to its mouth in Lake Ontario, at least on a seasonal basis. In winter the stream is frequently used for snowmobiling and cross-country skiing. The stream is, and always has been, floatable in fact, and in my opinion should in the public interest be regarded as a public highway in summer and winter. The majority of lakes and streams in Ontario are now seldom required for commercial use and it is, I suggest, quite illogical that the right of the public to use them for passage should, in the light of current requirements of the public for passage over the surface for non-commercial purposes, depend upon a finding of capability for commercial use at present or in the past.
I conclude therefore that if the stream is navigable in fact for the purposes of transportation or travel, or is floatable, whether for large or small craft of shallow draft, it is navigable in law without the necessity of applying the test of its usefulness for trade and commerce, a test which may well have been apt when the country was developing in the course of settlement, but is now no longer realistic in the light of modern conditions. I do not believe this does violence to the principles of the common law. I believe I am not precluded from taking this approach by judicial decisions in Ontario applicable to Ontario law, and it is consonant with what I regard as the persuasive authority of the decisions in Ne-Bo-Shone Ass'n Inc. v. Hogarth (1934), 7 F. Supp. 885, affirmed 81 F. (2d) 70, and Collins v. Gerhardt, supra. On this view of the matter I find that Bronte Creek is now and at the time of the Crown grant in 1827 to be regarded as navigable in law irrespective of its usefulness as a highway for commercial purposes.
It follows from what I have said that Bronte Creek, at the site of the Colemans' property, is navigable in law and the bed of the stream is not vested in the Colemans as riparian owners. The title is vested in the Crown in the right of the province. I wish to emphasize that, notwithstanding that I have made comments that may be taken to apply to portions of the stream above and below the Coleman site, this decision is confined to that portion of the stream that abuts and bisects the Coleman lands, and is based only upon the evidence and materials before me. [page623]
An order will therefore go declaring that the applicants have no interest in the bed of,the stream, Bronte Creek. In the circumstances this is not a case for costs and there will be no order for costs.
Judgment accordingly.
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Ontario Court Ruling on the definition of Navigability of a Creek
Summary:
Action for a declaration that a creek was not a navigable waterway. At issue was the interpretation of section 1 of the Beds of Navigable Waters Act, and in particular what was meant by "an express grant of it" and "navigable". The latter issue included a dispute as to whether navigability related to commercial or recreational navigation.
HELD: Action dismissed. Express meant particular rather than general. There were no express grants exempting the creek bed from Crown ownership. It was navigable, in that it was an aqueous highway, especially for canoes, for five to eight weeks during the spring run-off and for hunting for a number of weeks in the fall.
Statutes, Regulations and Rules Cited: ** Unedited **
Indexed as: Casselman v. Ontario (Ministry of Natural Resources)
Between Ramon H. Casselman, Plaintiff, and Her Majesty The Queen, in the Right of Ontario as represented by the Ministry of Natural Resources, Defendant
[1994] O.J. No. 2180 DRS 94-14785 Action No. 1807/92
Ontario Court of Justice - General Division Brockville, Ontario Cosgrove J.
September 12, 1994. (20 pp.)
Waters ? Navigable waters ? Navigable, what constitutes ? Ownership.
Beds of Navigable Waters Act, R.S.O. 1990, c. B.4, ss. 1, 3. Ontario Rules of Civil Procedure, Rule611.
Barry D. Laushway, on behalf of the Plaintiff. Leslie McIntosh and Elizabeth Christie, on behalf of the Defendant.
COSGROVE J.:?
BACKGROUND:
? 1 The plaintiff claims a declaration that the Hoasic Creek, insofar as it passes through the lands of the plaintiff herein at Lots 16 through 20, Concession 3 and Township of Williamsburg, County of Dundas, is not a navigable waterway.
? 2 The key issue between the parties is the interpretation of S. 1 of the Beds of Navigable Waters Act, Chpt. 04, R.S.O. 1990, which provides:
1. Where land that borders on a navigable body of water or stream, or on which the whole or a part of a navigable body of water or stream is situate, or through which a navigable body of water or stream flows, has been or is granted by the Crown, it shall be deemed, in the absence of an express grant of it, that the bed of such body of water was not intended to pass and did not pass to the grantee.
? 3 The question has been 200 years in gestation! The court is asked to interpret the original Crown grants of the affected property dated as early as July 16, 1797. Expert zooarchaeological opinion dating from the year 1100 A.D. was introduced during the trial.
? 4 Hoasic Creek, which begins (or ends) at the St. Lawrence River very close to the eastern limits of the Village of Morrisburg, has a mainstream length of 11.3 kilometres (crossing under eight public roads, including Highway 401) and has a watershed of approximately 81 hectares of drainage area. A diagram is attached to these Reasons illustrating its general location (Exhibit No. 1). The creek is sometimes identified as Nash Creek or Hoasic/Nash Creek or Hoasic Creek in the evidence. The most recent district map [See paper copy for illustration of map] published by the Ministry of Natural Resources (1988) identifies the watercourse by both names (Nash Creek and Hoasic Creek) and the sign for the creek at the Highway 401 intersection is posted as Hoasic Creek. The width of the spans in between the abutments of the various bridges crossing the creek vary from approximately six to 13 metres.
? 5 A Memorandum to File (A. Bosman, Lands Technician, 1981) introduced in evidence provided as follows: (Exhibit A--Tab 15--pp. 105-107)
Subject:Navigability of Hoasic Creek (Nash Creek), Williamsburg Township, Dundas County
In response to a letter received from the Township of Williamsburg, Hoasic Creek between Concession 3 and 5 was inspected by A. Bosman, Lands Technician and R. Sprigings, Conservation Officer on January the 10th, 1981, to determine the waterways' navigability. The following guideline was used in making a decision respecting Hoasic Creek's navigability. A body of water may be administratively decided to be navigable if it is capable, in its natural state during regular flow conditions, of accommodating watercraft commonly used for recreational boating or othersignificant aquatic transportation purposes." The following information was collected during the inspection.
1. Present use of the waterway by watercraft.2. Capability of use by commercial watercraft.3. Depth of water at natural and high water levels, width of natural channel type of bottom, shoreline and beach, physical structures or improvements influencing or impeding water traffic.
Note: (also that) Since a navigable waterway, although frozen over, is still technically navigable and the public can travel thereon, winter travel (over the Hoasic Creek) i.e. snowmobiling, snowshoeing, etc. over Hoasic Creek was also investigated during the inspection. Although the inspection was undertaken during freeze up, information concerning summer conditions was readily available from (informed sources.) (our C.O.'s) District Conservation Officers and (other) local residents. The inspection together with our other sources of information, revealed the following (information) facts about Hoasic Creek.
1. Hoasic Creek is frequently used by small watercraft e.g. canoes, punts, etc. for fishing and hunting purposes.2. The creek is not capable of being used nor is it used by commercial watercraft.3. The creek ranges from 1-3 metres in depth, 6-20 metres in width. The shoreline consists of cattails, alder and scrub bush. Approximately 4 beaver dams, all in a state of disrepair, obstruct the waterway, impeding water traffic.4. Snowmobile trails and tracks possibly made by a trapper were seen during the inspection.
In view of the above information and the guideline mentioned earlier, Hoasic Creek (can be) is considered (for administrative purposes in connection with Ministry Programs) to be a navigable waterway. It must be pointed out that this decision is based upon opinion and as such could be challenged in the Courts.
(Areas in parentheses were originally written by the author, then crossed and amended.)
? 6 The friction generating this action seeking a declaration respecting the navigability of Hoasic Creek is clearly illustrated in the following letter (February 20, 1981) to the Clerk Treasurer of the Township of Williamsburg from the District Manager, Cornwall District, of the Ministry of Natural Resources: (Exhibit A--Tab 16--pp. 108-109)
Dear Sir,This memo will confirm your telephone conversation (Schell - Sprigings) of Feb. 18/81. With reference to your question on the legality of a land owner prohibiting hunters and fishermen from travelling over the natural bed of the Hoasic (Nash) Creek. I trust the following will clear up your concerns. In early January an inspection of the Hoasic Creek was undertaken by two of our lands and wildlifestaff to determine administratively the navigability of the watercourse. The following guidelines were used in making a decision respecting the waterway's navigability; "A body of water may be administratively decided to be navigable if it is capable in its natural state, during regular flow conditions, of accommodating watercraft commonly used for recreational boating or other significant aquatictransportation purposes". A navigable waterway although frozen over is still technically navigable and the public can travel thereon, i.e.: snowmobiling, snowshoeing etc. Information concerning open water conditions was readily available from district Conservation Officers and local residents. In view of the above criteria the Hoasic Creek is considered to be a navigable watercourse by the Ministry of Natural Resources.A title search of the third, fourth and fifth concessions of Williamsburg along the Hoasic creek revealed that the Crown owned bed of the creek was never granted to landowners adjacent to the creek. With the determination that the Hoasic is navigable and the bed of such belonging to the crown, private landowners along the creek cannot prohibit entry or passage on or over the actual bed, but do control trespass upon flooded portions adjacent to the watercourse.It must be pointed out that this decision is open to interpretation and as such could be challenged in thecourt.Yours truly,J.R. MorinDistrict Manager
? 7 A letter was sent to the plaintiff on October 4,1990, from the Fish and Wildlife Supervisor in the Cornwall District office of the defendant as follows: (Exhibit A--Tab 20--pp. 115-116)
Dear Mr. Casselman:Since your discussion on Saturday, 29 September 1990 with Conservation Officer David Critchlow, it has come to Mr. Critchlow's attention that the bed of Hoasic Creek has been determined to be Crown land. A title search of the third, fourth and fifth concessions of Williamsburg Township along Hoasic Creek revealed that the bed of the creek was never granted to adjacent landowners. As a result, the bed is considered to be Crown land.Hoasic Creek has been determined under Ministry policy to be a navigable waterbody. Recent case law in Ontario (Canoe Ontario v. Julian Reed) has also determined that a waterbody is considered navigable if, in its natural state, it is capable of being traversed by a large or small craft. In the case of Hoasic Creek, it is certainly navigable by canoe. Case law continues to say that navigability does not give persons the right to trespass on private land to portage around obstacles. However obstacles may be traversed. Navigability is not restricted by the presence of obstructions - e.g. hydro electric dams.Further, the creek is considered to be navigable whether by boat on open water, or by snow machine or snowshoe in winter. Finally, Section 18(2) of the Game and Fish Act prohibits unauthorized persons from giving notice prohibiting an activity on Crown land.Yours truly,Ed McGregorFish and Wildlife Supervisor
? 8 A further memorandum from the Stormont-East Dundas Area Biologist M.N.R., July 28, 1992, sets the stage for this action: (Exhibit A--Tab 25--p. 134)
NAME OF AREASTORMONT-EAST DUNDASNAME OF RIDINGGLENGARRYNAME OF MEMBERMr. Noble Villeneuve
NAME OF ISSUENAVIGABILITY AND OWNERSHIP OF HOASIC CREEK
BACKGROUND AND ISSUE DESCRIPTIONSporadically, over the past several years, individual landowners along Hoasic Creek has asserted that they have the right to deny access to the creek on the basis that they own the bed of the creek. It has been the position of the Ministry of Natural Resources that the creek is navigable under the Beds of Navigable Waters Act. This position is an administrative interpretation of the Act and the associated case law. The final determination of navigability of a stream can only be established by the Courts on a case-by-case basis. Based on our position that the creek is navigable, and given that the original patents did not expressly grant ownership of the creek bed to the original landowner, it is our position that the creek bed is Crown Land and that consequently, the adjacent landowners cannot prevent the public from using the creek itself for various recreational pursuits such as canoeing or hunting.Mr. Tolley's assertion regarding the beaver being transplanted into Hoasic Creek is not verifiable. We have no information that this occurred and no way of finding out. It is not particularly relevant in any event because beaver were certainly present when the original patent was issued and the fact that beaver were not present (as alleged) in the 1940's and that the creek was drier in the summertime, does not alter our contention that the stream is presently navigable and hence, Crown land. The creek is used extensively by hunters, snowmobilers and canoeists (at various times of the year). In terms of beaver control (although this does not seem to be Mr. Tolley's main concern), MNR is already working with the Township (to facilitate closed season nuisance beaver control) and we are assigning trappers to the creek during the open season as well. Given that the area is an extremely large Class 1 wetland which we do not want to see compromised by extensive drainage, we are of the opinion that the present level of beaver control (attained by our present efforts) is sufficient.
PROPOSED RESOLUTION, IF ANYIt is not in MNR's interests nor is it appropriate to alter the administrative opinion that the creek is navigable and therefore Crown land. The final determination of navigability would have to be made by the courts in an action launched by one or more of the landowners.Beaver control should continue to be undertaken as it is now with MNR cooperating with the Township (during the closed season) and assigning trappers to the area during the open season.
? 9 Obviously the plaintiff, having been advised by the defendant that the final determination of navigability of a stream could only be established by the courts, opted to seek such a determination.
LAW:
? 10 Counsel were in agreement that the key issue between the parties is the interpretation of Section 1 of the Beds of navigable Waters Act, Chpt. B4, R.S.O. 1990. I will repeat this section for ease of reference:
1. Where land that borders on a navigable body of water or stream, or on which the whole or a part of a navigable body of water or stream is situate, or through which a navigable body of water or stream flows, has been or is granted by the Crown, it shall be deemed, in the absence of an express grant of it, that the bed of such body of water was not intended to pass and did not pass to the grantee.
? 11 Counsel agreed as well that there were two aspects of Section 1 above germane to the determination of the issues between the parties, as follows:
(i) what is meant by the words, "an express grant of it"?(ii) what is meant by the word, "navigable"?
? 12 It is only when these words are interpreted in law that the facts in the case can be examined as to their pertinence (which will be done under the heading FINDINGS).
(i) "an express grant of it"...
? 13 I accept the argument of counsel for the Ministry of Natural Resources that use of the word "express" in Section 1 connotes "particular" as opposed to "general". This distinction is apparent from earlier cases which examined Section 1 of the Beds of Navigable Waters Act so that plain, clear and particular identification of the bed of a specific body of water needs to be located in the Crown grants similar to the exception and the words of the exception in Section 3 of the Act itself which provides:
3.This Act does not apply to the bed of the river in Lot 8 in the 6th Concession of the Township of Merritt in the District of Sudbury.
(ii) "navigable"...
? 14 It is obvious that the interpretation or meaning attributed to the word "navigable" is not simply hypothetical or of academic concern to the Ministry of Natural Resources which has a mandate to administer the use of these lands (and waters above them!). The memoranda and letters which have been quoted herein illustrate that the administrativeinterpretations governing the Ministry's procedures have been closely dependent upon the case law treating of the issue of navigability. Similarly, the owners of affected property and the general public have been guided in their use of disputed waterways by the rulings of the courts.
? 15 A number of circulars distributed within the Ministry of Natural Resources on the subject of "Navigability of Waterways" were introduced in evidence for the years of 1976, 1983 and 1992. The 1976 circular described a water course as navigable if it was capable of use by the public "for purposes of aquatic transportation and commerce". The May 24, 1983 Bulletin contains the following introductory paragraphs:
The Reasons for Judgment, released March 1, 1983, by Mr. Justice Henry of the Supreme Court of Ontario in Coleman and the Attorney General for Ontario et al. provides this Ministry with some long-awaited modern case law on the subject of navigability of waterways in Ontario. The Judgment clearly establishes that navigability is both a question of law and of fact. Navigability, in fact, is demonstrated if a waterway is used or capable of use by the public as an aqueous highway for activities such as boating, canoeing, the use of paddle-boats, inflatable rafts, kayaks, white-water canoeing and rafting, as well as, in winter, cross-country skiing, snowshoeing and snowmobiling. A waterway which is navigable, in fact, for purposes of transportation or public travel is navigable in law.
? 16 The Bulletin went on to detail specific criteria to be considered by local ministry officials in determining "navigability" and contained in the following instructions:
In cases where data from previous study of a waterway is already on hand, it may be used if it adequately addresses the new criteria. However, the decision reached must be in accord with the new case law, regardless of whether or not such decision is contrary to a previous one.
? 17 The most recent Directive (February 13, 1992) from the Ministry placed in evidence is a more comprehensive document on the issue of "navigability" which makes reference to the more recent case of "navigability", Canoe Ontario et al. v. Reed et al. (1983) 69 O.R. (2d) 494 (which, in turn, relied heavily upon Coleman and the Attorney-General for Ontario et al.). The instructions to regions in making navigability decisions contained the following:
In order to make a determination of navigability at the date of letters patent, particularly in older grants, in addition to researching the historical use and physical characteristics of the waterbody, field staff must research the original patents, original surveys, and field notes before making an administrative decision on the navigability of a waterbody. Interpretation of survey plans and field notes should be done in consultation with Crown Land Surveys Section. If, after having considered the issue of navigability both under the current situation and at the date of patent, different conclusions of navigability prevail (e.g. because of artificial improvements or impediments to navigation; or a drying up of a river bed), Legal Services Branch Staff should be consulted before developing a Ministryposition...Navigability is both a question of law and of fact. To be navigable in law, the water course must be navigable in fact. Navigability in fact is demonstrated if a waterway is used, or is capable of being used, by the public as an aqueous highway. For a waterway to be navigable in law, it must have real or potential practical value to the public as a means of travel or transport, generally from one point of public access to another point of public access.
? 18 Plaintiff's counsel argued that the so-called "new" or "modern" approach to navigability in the Coleman and Canoe decisions is not binding because these decisions where they enlarged or extended the meaning of "navigability" beyond that contained in earlier jurisprudence (navigability in Leamy et al. v. The King, 1916, 33 D.L.R., 237, meant that a stream must be capable of navigation in furtherance of trade and commerce), such extension was unnecessary or restricted to the facts of those particular decisions with the result that the comments therein respecting recreational uses are obiter.
? 19 It was also argued by Plaintiff's counsel that the Coleman and Canoe decisions are not determinative of the issue of navigability because of the manner in which the issues were placed before the court for adjudication. For example, in the Coleman case the court was asked for an opinion by way of originating motion based on affidavits under Rule 611 and no viva voce evidence was called from parties other than the applicant or Ministry staff (a kinder, gentler process than the trial herein wherein a number of independent witnesses testified and were subject to cross-examination). It was urged that the real issue in dispute in the Canoe case was the right of portage by canoeists across the defendant's property where a dam used for private hydro-electric generation blocked the Credit River.
? 20 I am unable to agree, with respect, that the Coleman or Canoe decisions should be so narrowly interpreted or restricted. In the Coleman et al. and Attorney-General for Ontario et al., 143 D.L.R. (3d) 608 decision, Mr. Justice Henry in his extensive review and analysis of the development of case law on the subject of navigability in Ontario distinguishes the common law English basis from that of the law originating in France which was adopted by the Supreme Court of Canada, but only insofar as it applied in the Province of Quebec. He says at Page 618:
Under the common law as I see it, navigability for commercial purposes was simply evidence that the watercourse was navigable in fact; it was not an essential condition of navigability in law.
? 21 His summary at Page 622 is as follows:
I conclude therefore that if the stream is navigable in fact for the purposes of transportation or travel, or is floatable, whether for large or small craft of shallow draft, it is navigable in law without the necessary of applying the test of its usefulness for trade and commerce, a test which may well have been apt when the country was developing in the course of settlement, but is now no longer realistic in the light of modern conditions. I do not believe this does violence to the principles of the common law. I believe l am not precluded from taking this approach by judicial decisions in Ontario applicable to Ontario law, and it is consonant with what I regard as the persuasive authority of the decisions in Ne-Bo-Shone Ass'n Inc. v. Hogarth (1934), 7 F. Suppl. 885, affirmed 81 F. (2d) 70, and Collins v. Gerhardt, supra. On this view of the matter I find that Bronte Creek is now and at the time of the Crown grant in 1827 to be regarded as navigable in law irrespective of its usefulness as a highway for commercial purposes. (Emphasis Added)
? 22 As regards the process of adjudication in the Coleman decision, Mr. Justice Henry was himself concerned that the trial of an issue ought to have been directed. After argument, he reserved judgment and on review requested and received considerable additional evidence from the parties on the history of Bronte Creek. Much of the evidence considered by him is the same type of evidence placed before me in this trial (i.e. historical and current on-site surveys of the stream, maps, photographs and affidavits of personal experience and observations). He found as well that there was no issue of credibility, although he said he preferred some areas of evidence by one party over that of another.
? 23 Similarly, I do not believe that credibility is a significant issue on the evidence before me; in other words, although there are areas of evidence which conflict between the plaintiff and witnesses called by him with witnesses called by the Ministry of Natural Resources, I do not believe these areas are determinative of the issues for decision.
? 24 As regards the decision of Mr. Justice Doherty in Canoe Ontario et al. v. Reed et al., 69 O.R. (2d) 494, I am satisfied that he was required to direct his mind directly to the issue of navigability (in addition to the issue of portage) with the result that his comments thereon, in my view, are legitimate ratio decidendi in the decision. Moreover, Mr. Justice Doherty buttresses the analysis by Mr. Justice Henry at Page 502 where, after a review of Quebec and American authorities, he states:
I agree with Henry J. in Re Coleman and A.-G. Ont., supra. at p. 622, that commercial utility is not a sine qua non to navigability, although evidence of commercial use will be determinative of the question. If the purpose underlying the recognition of a public interest in certain waterways is analogous to that which recognizes the public interest in certain highways, then that purpose is not served by limiting navigability to cases involving commercial usage. A public highway may serve many public purposes other than a purely commercial one.
? 25 I agree and adopt his words at Page 503:
A distinction between public commercial use and public non-commercial use is also unrealistic. Many non-commercial uses can readily be turned into commercial endeavours. This case provides an example. If several individuals, for recreational purposes, canoe down the river, then their purpose is entirely non-commercial; however, if one individual, perhaps more experienced than the others, purports to operate a tour down the river and to charge individuals for canoeing the river with him, then the exact same trip becomes a commercial endeavour. Navigability should not depend on such personal considerations. Navigability should depend on public utility. If the waterway serves, or is capable of serving, a legitimate public interest in that it is, or can be, regularly and profitably used by the public for some socially beneficial activity, then, assuming the waterway runs from one point of public access to another point of public access, it must be regarded as navigable and as within the public domain.
? 26 In his comments, Mr. Justice Doherty cites an example of how a recreation canoeing outing can be clothed as a commercial endeavour. This analysis implicitly excludes recreation uses from commercial designation. On the other hand, most recreation activities inherently have some commercial component (some more than others) so the distinction between these uses today is tenuous. In other words, "commerce" in 1795 in Ontario is not the "commerce" of the Ontario of the 1990's. (I think of the employment in the manufacture, distribution and sale of such things as canoes, fishing, hunting and sporting equipment and apparel).
FINDINGS:
(i) Express grant of river bed to Hoasic Creek.
? 27 I have reviewed the various copies of Letters Patent from the Crown of the lands of the plaintiff through which Hoasic Creek runs in Concession 2, 3 and 4 of the Township of Williamsburg. These Patents bear dates July 16, 1797, September 1, 1797, March 3, 1808, January 22, 1836, and March 18, 1871. I have had the opportunity of comparingthe wording of these Patents with those which were studied respecting the Credit River.
? 28 I agree with Ministry counsel that none of these Patents have wording sufficiently express to exempt the bed of the Hoasic River from Crown ownership by virtue of Section 1 of the Beds of Navigable Waters Act.
(ii)Navigability of the Hoasic River ...
(a)... at the time of Crown Patent beginning July 16, 1797.
? 29 A written report, May 26, 1994, from Staff Archaeologist C. Andersen of the Ministry of Culture, Tourism and Recreation was introduced into evidence. The author has spent twenty years of archaeological study in research on the St. Lawrence Iroquoians and other Ontario Iroquoian peoples. His primary area of research is zooarchaeology, the study of animal bones from archaeological sites. Rather than attempt to paraphrase the report's findings, I will excerpt some pertinent sections of his opinion: (Exhibit A--Tab 34--Page 1)
The Steward (BfFt-2) site is located on the west side of the town of Morrisburg, near the mouth of Stata's Creek, on Lot 31, Concession 1, Williamsburg Township, Ontario. Stata's Creek is the first creek west, by about 2 km, of Nash/Hoasic Creek. The artifactual and radiocarbon evidence from the Steward site shows that it was occupied by St. Lawrence Iroquoian peoples for a period of about 500 years, ending at circa A.D. 1600. The faunal evidence shows that the site was only occupied on a seasonal basis, in the spring and fall, and that it served primarily as a fishing station. The primary fish species exploited were American Eel, Sucker/Redhorse, and Smallmouth Bass. The most important mammal species utilized by the site's inhabitants were deer and beaver, both of which were obtained locally and in significant numbers.(Page 2)... The St. Lawrence Iroquoian peoples had two main types of settlement:(1) large inland villages which were occupied on a year-round basis, and(2) small seasonally-occupied sites which were established for the purposes of exploiting specific farmal resources, especially fish. Examples of the latter type include the Steward site at Morrisburg and the Driver's (FeFu-2), east of Johnstown. The main village sites, such as are represented by the Beckstead (BfFt-1) site, were typically located in less exposed situations at some distance inland, most commonly on the South National River or its tributaries.Travel between the inland villages and the small fishing stations on the St. Lawrence was accomplished either by foot, via woodland trails, or, most commonly, by canoe, which was the principal mode of transportation for all Iroquoian peoples. The many rivers, streams and creeks in the region were the main travel corridors for both the Native Peoples and the European settlers until well into historic times.The waterways were the highways on which were carried people, food, and the beaver and other pelts which were the principal objects of trade between the Native Peoples and the Europeans.... The largest and hence most easily navigable northward-flowing creek in the vicinity of the Steward site is Nash (Hoasic) Creek. Unfortunately, there has never been an archaeological survey conducted along the banks of that stream and its mouth has been inundated to a distance of about 500 metres north from its original location. Any archaeological sites which may be located there are now under as much as 25 feet of water. As a result, there is currently no information available concerning Native settlement anywhere along Nash/Hoasic Creek. Nevertheless, on the basis of the presence of sites at the mouths of Stata's, Flagg, and Driver's creeks, all smaller streams, it is my considered opinion that similar St. Lawrence Iroquoian sites were present on Nash/Hoasic Creek and that substantial archaeological sites may yet be found on its banks. It is my opinion that Nash/Hoasic Creek would have served as a major thoroughfare by means of which the local St. Lawrence Iroquoian peoples would have travelled to and from the hinterlands to the north. Certainly there is zooarchaeological evidence to suggest that the inhabitants of the Steward site were aware of and made good use of Nash/Hoasic and its resources. (Emphasis Added)Zooarchaeological analyses of the animal bones recovered from Steward and Beckstead show that beaver were very well represented at both sites, as they are at all other St. Lawrence Iroquoian sites for which such analyses have been completed. Among the other species represented in the Steward site were relatively large quantities of Smallmouth Bass. Nash/Hoasic Creek is the only stream on this" part of the St. Lawrence into which Smallmouth Bass enter in large numbers during the spring spawning season. In order to have caught this species in the significant numbers present in the Steward site fannal assemblage, the inhabitants of the Steward site must have been exploiting the Nash/Hoasic spawningrun.
? 30 Exhibits No. 14 and No. 15 in the trial which were copies of a Survey Plan and assessment map for the Williamsburg Township dated January 15, 1795, recorded the Hoasic Creek for the first time. A Report and Field Notes, 1938, by N.B. MacRostie, O.L.S., records the early chronology of official surveys of the District of Williamsburg from 1785. Narrative and plan sketches therein identify the Hoasic Creek from these earliest records. The chronology of record of the Creek was continued through the evidence of a plan of survey showing the land division of the lands in Concessions I to V through which the Hoasic Creek ran taken from the Illustrated Historical Atlas of the Counties of Stormont, Dundas and Glengarry dated 1879. Hoasic Creek is said to have been named by united Empire Loyalists who initially settled its environs. There is nothing in the evidence to refute the continuous use of the river at least for canoes or small craft from the time of its earliest recording in 1795 to modern times.
(b) ... navigability of the Hoasic Creek today.
? 31 A Navigability Report of the Hoasic Creek, Williamsburg Township, St. Lawrence River to Concession V, prepared by Jim Cameron, June, 1993, was very helpful to me in determining the nature of the Hoasic Creek today. This Report follows a format prepared by Ministry officials on the issue of navigability of the Credit River. The use of this common format is useful not only as a diagnostic or analytical tool in assessing the Hoasic Creek, but also as a quick comparison, for example, to the study of the Credit River.
? 32 The Report organizes information on the Creek under the following headings: Introduction; Physical Description; Creek Data Chart; Existing uses; Past Uses; Summary. The Report also contains a List of Illustrations including Photographs (30), Resource Mineral Survey Map, Topographic Map showing Stream Measurements and Wetland Boundaries and various additional topographic maps together with the earlier Survey Report and field Notes of 1938.
? 33 The author of the Report, Mr. Cameron, testified at the trial that he prepared the initial draft of the report which was subsequently edited by legal counsel for the defendant. He was cross-examined extensively on the Report, but l am satisfied that the Report substantially presents an accurate assessment of the characteristics of the Hoasic Creek today. The Report contains the following comments under the heading, "Existing Uses": (Exhibit 12--Tab 1--Page 5)
The WetlandsThe Creek provides an important recreational activity for waterfowl hunters and naturalists seeking access to the Wetland upstream. The Wetland was designated as a provincially significant wetland on or about 1986, when the Ministry determined that it was large in size (4,088 hectares), contained a great variety of fish and wildlife habitats, as well as vegetation communities. The Wetland is important for waterfowl production and migration, supports provincially significant wildlife species, and is a wintering area for wildlife. Moreover, the Wetland the Creek act as a spawning area for numerous fish species, and contributes substantial social and economic benefits to its users. Waterfowl hunters and naturalists use the Creek to access the Wetland throughout the spring, summer and autumn.The St. Lawrence River The Creek empties into the St. Lawrence River, which is another significant point of public access. Canoes and other small water craft use the Creek for recreation and access to the St. Lawrence River.In the last several years, a small local group of canoeists have navigated the Creek from Road 18 to the St. Lawrence River. This sport is limited by the depth of the water during the summer months.In addition, Ministry staff have regularly observed waterfowl hunters using canoes during the fall in Concessions 3, 4, and 5. Ministry staff have also traversed the length of the Creek by canoe over the last ten years.
? 34 The photographs included in the Report are impressive pictorial support for the text above. In addition, I was similarly assisted with a video presentation taken on a canoe trip from County Road 18 (the northern limit of Hoasic Creek) to the St. Lawrence River, where the Hoasic empties its waters.
? 35 The use of the Hoasic Creek by canoeists, whether for boating pleasure, hunting or fishing was confirmed by all the witnesses who testified during the trial. Evidence by some witnesses was to the effect that canoes had been used on the Hoasic Creek for generations, especially during the spring high water run-off.
? 36 Evidence of aerial maps of the Hoasic Creek were introduced at the trial (photographed during the summers of 1951, 1971 and 1992) which illustrated the consistency of the creek bed location over those decades. In addition, the court was shown two aerial videos taken of the entire length of Hoasic Creek, one filmed in July, 1992, and the other inMay, 1994.
? 37 I alerted counsel at the beginning of the trial that there was the potential for me to conduct a view of the Hoasic Creek where it crossed the plaintiff's property. The evidence of the various witnesses during the trial (for both parties), including the maps, photographs and videos, made a view unnecessary. Obviously, the Hoasic Creek by comparison to the material provided describing the Credit River is a smaller, slower and shallower water course. Nonetheless, the evidence plainly illustrates that it is an aqueous highway, especially for canoes, for five to eight weeks during the spring run-off and for hunting for a number of weeks in the fall.
CONCLUSION:
? 38 Some weeks after I had reserved my judgment herein, defendant's counsel sent me a copy of the judgment in Dobson v. Tulloch, 17 O.R. (3d) 533, a recent decision of this court dated March 15, 1994. The trial judge at Page 543 therein appears to return to the earlier notions of "commercial" use in defining the meaning of navigability. Unfortunately,counsel in the Dobson v. Tulloch decision did not bring the Canoe or Coleman decisions to the court's attention (this is acknowledged by the judge at Page 543). Absent this reference to the Canoe or Coleman decisions, I do not believe the decision on the issue of "navigability" is binding or detracts from my interpretation of the law herein.
? 39 As a result of my findings and interpretation of "navigability" in Section 1 of the Beds of Navigable Waters Act, the part of the Hoasic Creek which runs through the plaintiff's property was a public or navigable waterway in 1759 and continues as a public or navigable waterway today, with the result that the plaintiff's request for a declaration to the contrary is dismissed.
? 40 May I have submissions on costs in writing within 30 days.
? 41 ORDER ACCORDINGLY.
COSGROVE J.
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