As summarized in our first bulletin in this series, the federal government recently proposed sweeping changes to Canada’s environmental legislation, including changes to the regulation of navigable waters. Under Bill C-69, the Navigation Protection Act (“NPA”) will be renamed the Canadian Navigable Waters Act (“CNWA”) and will further regulate activities that obstruct or potentially interfere with travel or transport on navigable waters in Canada. This bulletin provides further details of the CNWA.
The proposed changes include:
- expansion of existing requirements to seek approvals for works in or across navigable waters, covering more navigable waters and more types of works;
- additional protections for waterways of significance to Indigenous peoples, and the express requirement to consider adverse effects on the rights of Indigenous people;
- increased transparency requirements for any project that may interfere with navigation;
- opportunities for community members to comment on proposed works; and
- the requirement for proponents to make efforts to resolve issues raised before an authorization is given.
This bulletin focuses on the proposed changes that will most affect those who have or are planning to construct projects that may involve water crossings (including bridges), in-water installations such as docks, jetties or dams, and other temporary or permanent works that could interfere with travel or transport on lakes, rivers or other waterways.
Changes to “Navigable Waters”
Although the federal government has long had in place legislation to protect navigation rights, the CNWA will be the first to propose a detailed statutory definition of “navigable waters”.
The proposed definition will capture any body of water:
- that is used or is reasonably likely to be used by vessels (in full or in part, and for any part of the year) as a means of transport or travel for commercial or recreational purposes, or by Indigenous peoples exercising their Indigenous rights; and
- where there is public access (by land or water), where there are two or more waterfront owners, or where the Crown is the sole waterfront owner.
The CNWA enlarges the scope of the federal government’s oversight powers in other ways as well. For example, under the current NPA, most of the federal government’s regulatory powers related to approving works apply only to those navigable waters that are specifically listed in a schedule to the Act. Once the CNWA is brought into force, such approval powers will apply to all navigable waters in Canada. The Act will still contain a list of scheduled navigable waters, but the purpose of the schedule will be to provide for additional approval powers in respect of those listed waters.
Significantly, under the CNWA, any person may make a request to the Minister to have a navigable water added to the Schedule. This has the potential to result in many navigable waters being added to the Schedule, resulting in higher levels of scrutiny for proponents of projects that may impact navigation in such waters.
New Approvals Needed
The CNWA will expand existing approval requirements in respect of temporary or permanent works in navigable waters.
Under the current NPA, an approval is only needed for the construction, placement, alteration, rebuilding, removal or decommissioning of a work that is located in a navigable water listed in the schedule to the Act, and which the Minister has determined is likely to substantially interfere with navigation. No approval is required if that work is otherwise authorized under a different federal statute.
Here is a summary of the approval requirements that will apply to various types of works under the CNWA:
Type of work
Major works (i.e. works which are likely to substantially interfere with navigation, as designated by Ministerial order, e.g. a hydroelectric dam)
An owner of a major work may not construct (alter, remove, etc.) a major work in, on, over, under, through or across any navigable water in Canada without making an application for an approval.
If the Minister determines that the construction (alteration, removal etc.) of the work will not interfere with navigation, then no approval is needed. If the Minister determines that it may interfere with navigation, then an approval process will be triggered.
The approval process contemplated under the CNWA will involve a public notice of the work, public disclosures of related information and a public comment period.
The owner must obtain either an approval or a determination that no approval is required before commencing construction (alteration, removal, etc.).
Minor works (i.e. works which are likely to slightly interfere with navigation, as designated by Ministerial order, e.g. a boat ramp)
An owner of a minor work may construct (alter, remove, etc.) a minor work in any navigable water, without requiring any specific approval. However, all minor works must be constructed in accordance with the Act and any conditions prescribed by regulation or by Ministerial order.
Other works (not major or minor) on navigable waters listed in the Schedule to the CNWA
Same process as for major works.
Any other works on navigable waters not listed in the Schedule
Must either (1) make an application for approval (same process as for major works), or (2) file prescribed information about the project and a public notice.
Filing the public notice would trigger a public comment period. If a comment is expressed relating to navigation in that period, the owner and the person who made the comment must attempt to resolve the concern within 45 days of the end of the comment period. If the owner and the person who submitted the comment cannot resolve the concern, the person who submitted the comment may request that the Minister decide whether an application for approval of the work is required.
New Factors Considered
The CNWA introduces new factors that the Minister must consider when deciding whether an application for an approval should be approved. These new factors include the impact on navigation of the work in combination with other works, any traditional knowledge of the Indigenous peoples of Canada that has been provided to the Minister, any comments that the Minister has received from interested persons, the record of compliance of the owner of the works and any other factors that the Minster considers relevant.
The CNWA also expressly requires the Minister, when making any decision under the CNWA, to consider any adverse effect that the decision may have on the rights of Indigenous people.
Enhanced Enforcement Powers
The CNWA also gives the Minister enhanced enforcement powers, including expanded powers to direct an owner of a work or a person in charge of an obstruction or potential obstruction to take action, and to recover the costs from the owner of the works or the person in charge of the obstruction if the government must itself take action to remove it.
New offences have been added, and the potential penalties, fines and limitation periods for offences and violations have all been significantly increased under the CNWA. The CNWA also authorizes courts to impose a wide range of prohibitions, directions or requirements on persons convicted of an offence.
Projects with Existing Permits
The Bill contains transitional provisions that relate to the variety of regulatory processes and decisions that applied or were made under the existing NPA. The Bill generally provides that approvals and permits, including attached terms and conditions, that were issued or deemed to be issued under the existing NPA, will be deemed to have been issued under the new CNWA.
Owners of works that do not currently require approvals under the NPA, such as works in navigable waters that are not listed in the schedule to the Act, or works authorized under other federal legislation, will need to assess if approvals are required under the CNWA before undertaking the alteration, rebuilding, removal or decommissioning of those works.
The changes to Canada’s regime for protecting navigable waters must still be passed by Parliament. Until the new rules come into effect, the Navigation Protection Act continues to apply.