Calgarian Mikkel St. Jean-Duncan started filming the paddling of a core group of kayakers on plunging B.C. falls and surging whitewater that has been declared “un-navigable” by hydroelectric companies looking to build dams and power plants. St. Jean-Duncan and his friends in the Endangered Creeks Expedition have challenged developers’ definition of “navigable waters” with their own, rather liberal, interpretation in a new self-titled documentary (view a teaser at ca.youtube.com/watch?v=bBvEGdIovRA).

“We paddled about 30 rivers — some that have had hydro projects and ones that were planned, ones that were under construction,” the Nelson-based kayaking instructor tells Fast Forward. “Most of the video is what we call ‘steep-creeking.’ It’s definitely on the more extreme edge,” he concedes. However, it’s his documentary’s edgy message that has developers, environmentalists, politicians and paddlers from across the country on a collision course.

The federal budget, released January 27, states that the Navigable Waters Protection Act (NWPA), which requires an environmental assessment prior to development on all bodies of water in Canada that are deep enough to float a canoe on — legislation capitalized on by the ECE — will soon change.

Sure enough, massive revision of the NWPA appears in the Budget Implementation Act released February 9, and will likely be approved by the Finance Committee as it tries to rescue the floundering economy.

The Standing Committee on Transport, Infrastructure and Communities (TRAN) convened in early 2008 at the request of Transport Minister John Baird to see what could be done to speed up infrastructure spending. Stakeholders were invited to testify — but water navigators such as adventure paddlers and eco-tourism groups were not invited to the TRAN hearings, and only one environmental group testified among the dozens of municipal and provincial development and transport representatives — and only after demanding inclusion.

Among its recommendations, the TRAN committee called for a stricter definition of “navigable” so that tiny vessels with huge navigability, like kayaks, could no longer define the rule. The government seized on those recommendations, replacing “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,” with a new, unspecified definition that falls to the case-specific discretion of the minister of transport.

By including the amendments in an omnibus bill, the government has circumvented the standard parliamentary and public debate.

They want to spend many billions of dollars in infrastructure spending, and it’s a pain to get approval to build a road or a bridge,” says Phil Green, a spokesman for I Speak for Canadian Rivers, a cross-Canada network of paddlers that organized in response to the TRAN committee hearings. “It appears Harper put [the NWPA] into the Budget Implementation Act to make sure it goes through. I did not expect that. It is Machiavellian to say the least.” Conservation groups are mobilizing to lobby for the removal of the NWPA from the budget.

The act currently enshrines the right to navigate any water in the country, a right that avid paddler Green has exercised extensively. “Just go to a map and where you see a blue line, you can go out on it.”

“In a few days, the right will expire, and the right to navigate will be at the discretion of the minister,” he says. “This is a wholesale change to an ancient institution, rammed through with a blunt instrument.”

According to the TRAN committee, the problem with the act is that it triggers time-consuming environmental assessments for development applications affecting navigable waters, and that has municipalities fuming. A PowerPoint document presented to the committee even called the NWPA “a tool of choice” for “hidden agendas” like those of environmental groups.

In fact, the NWPA is one of the few pieces of legislation that triggers federally mandated environmental assessments, which has made it a target according to Celeste Coté, water campaigner for the Sierra Club of Canada. That environmental protection was reinforced in 1992 when the Supreme Court determined the federal government failed to assess the environmental impact of the Oldman River dam as required by the NWPA.

However, John Christopher, a Library of Parliament researcher and analyst for the TRAN committee, says, “I don’t think they’d [the Harper government] want, in this political climate, to dismantle environmental assessment.”

It’s the bleak economic climate, though, that has Coté concerned. She says the Harper government is also undercutting all the federal environmental assessments triggered by the NWPA, exposing fragile water systems to Flaherty’s huge infrastructure spending plans.

Merv Tweed, Conservative MP and chair of the TRAN committee, denies that the assessments are under attack, and says the NWPA is simply outdated and was written when the majority of Canada’s freight and transportation depended on navigation. Now, he says, the old definitions are causing delays and heavy paperwork for projects as small as culverts on farmers’ fields.

“If it can float a canoe, it’s considered navigable water,” says Tweed. “Well, I’ve got a ditch in my yard that fills with water for a week every year. Is that navigable water?”

Tweed denies paddlers were explicitly excluded from the TRAN hearings, and assures them their time to speak will come in future public consultations. However, the sudden appearance of NWPA amendments in the Budget Implementation Act indicates to paddlers that public input has been jettisoned for economic expediency. “As the country’s infrastructure grows over the years, I expect we will slowly find our way blocked by dams, weirs, culverts, bridges, booms and other structures,” says Green.

David Osbaldeston, the national manager of the Navigable Waters Protection Program under Transport Canada, refused to speak with Fast Forward. He did testify to the TRAN committee that the proposed amendments will only affect waters considered “non-navigable” by “reasonable canoeists or kayakers.”

However, even the most extreme kayakers insist their demands are reasonable. “Canada was discovered using canoes,” says St. Jean-Duncan, and insists navigation is part of our heritage. “It would be a shame if future generations might not be able to have that.”