Selina Lee-Andersen

In 2012, omnibus budget legislation (Bill C-38) was introduced by the previous Harper government, which included changes aimed at streamlining various federal environmental assessment (EA) review and regulatory processes. As part of its 2015 election platform, the federal Liberals promised to review these changes with a view to restoring lost protections and introducing modern safeguards. Following a comprehensive review and public consultations, the federal government introduced into Parliament proposed amendments to processes under the Canadian Environmental Assessment Act, 2012 (CEAA 2012), National Energy Board Act (NEB Act), and the Navigation Protection Act (NPA, previously the Navigable Waters Protection Act) on February 8, 2018. The federal government had introduced proposed amendments to the Fisheries Act (Bill C-68) earlier in the week on February 6, 2018. The proposed Fisheries Act amendments are discussed in more detail here.

The review of the NPA began in October 2016 when the Minister of Transport asked the Standing Committee on Transport, Infrastructure and Communities (the Transport Committee) to examine changes to the NPA that were made in 2012. The focus of the review was on the environmental and sector impact of the changes, as well as the cost and practicality of the changes within the context of the environmental, business and recreational functions of Canada’s waterways. The Transport Committee released its report, A Study of the Navigation Protection Act (NPA Report), on March 23, 2017. The NPA Report set out 11 recommendations including, among other things, maintaining the current Schedule to the NPA and establishing user friendly mechanisms to add waterways to the Schedule, including Transport Canada in the EA decision-making process for pipelines and electrical transmission lines that cross navigable waters, establishing more clearly articulated criteria for the aqueous highway test, requiring project proponents to adequately inform stakeholders before commencing work, and establishing an efficient administrative complaint mechanism to resolve possible impediments to navigation.

Bill C-69 was introduced into Parliament on February 8, 2018 and covers proposed amendments to CEAA 2012, NEB Act and the NPA. Our commentary on proposed changes to the EA and energy regulatory processes can be found on our main blog. A summary of the key changes to the NPA, which will be renamed the Canadian Navigable Waters Act (the Act), is set out below. For policy context, “works” refers to any structure, device or thing (temporary or permanent) made by humans that is in, on, over, under through or across any navigable water (they can be small works like docks or large works like dams).  “Scheduled navigable waters” refers to those navigable waters listed on a Schedule to the Act, which have been identified for extra oversight by Transport Canada.

  • New Definition of Navigable Waters: The federal government has proposed a new and broader definition of “navigable waters” which includes any body of water (including a canal or any other body of water created or altered as a result of the construction of any work) that is used (or is reasonably likely to be used) by vessels as a means of transport or travel for commercial or recreational purposes, or as a means of transport or travel by Indigenous peoples to exercise their constitutional rights, and:
    • there is public access by land or by water,
    • there is no such public access, but there are two or more riparian owners, or
    • where the Crown is the sole riparian owner.

This definition will likely increase the number of waters considered navigable; however it is not intended to capture ditches and irrigation channels.

  • Approval of Major Works: Bill C-69 proposes a new requirement for approvals of major works that significantly impact navigation on all navigable waters, such as large dams or other works. These approvals would be required before any building begins. The Act would also require an approval to construct or place works in, on, over, under, through or across a Scheduled navigable water in Canada that may interfere with navigation. For navigable waterways not on the Schedule, the Act would require that proponents issue a public notice and provide information about proposed works (except for minor works) on all navigable waters to give people the opportunity to ask questions and voice concerns before construction begins. It would also introduce a resolution process that would allow the Minister of Transport to review navigation concerns for works on navigable waters not listed on the Schedule where the concerns are not resolved. Minor works (such as docks and boat ramps) will be subject to pre-determined requirements on all navigable waters. Where minor works meet these requirements, they will not require approvals.
  • Regulation of Obstructions: Bill C-69 provides authority for the Minister of Transport to regulate both actual and potential obstructions on all navigable waters, including authority to order a person in charge of an obstruction to take action or to take any action in all navigable waters where the person in charge is unknown or cannot be located. An obstruction is anything that prevents or slows navigation, or makes it more difficult or dangerous (e.g. wrecks or vessels that are left anchored, moored or adrift can be obstructions).
  •  More Transparency and Public Participation: The new Act will give local communities and Indigenous peoples an opportunity to have a say in projects that could affect their navigation by requiring owners to notify the public about proposed works and giving people the opportunity to ask questions and express concerns before construction begins on all navigable waters. Bill C-69 also proposes the establishment of a new online public registry that will provide information on proposed works and providing clarity around factors that are considered when approving a work (including the cumulative impact that multiple works could have on navigation).
  •  Updated Notification Requirements: For works that are located on navigable waters that are not listed on the Schedule, owners will be required to provide information and issue a public notice of the proposed work to enable meaningful engagement with local communities. If any navigation-related concerns cannot be resolved, the Minister of Transport will have the authority to review these concerns and determine whether the owner should go through the formal approval process. Owners of works on navigable waters that are not listed on the Schedule will also have the option of applying for a permit, which may be administratively simpler as owners will not be required to post information for public comment if they choose the permit route. For works (except for minor works meeting the assessment criteria) located on Scheduled navigable waters and major works on all navigable waters, owners will be required to submit an application to the Minister of Transport for approval of such works. The application process will require owners to provide information and issue a public notice of the proposed work for public consultation purposes.
  • Greater Enforcement Powers: The new Act will provide for greater enforcement powers including new authorities to enhance compliance with the Act, greater penalties for violations and offences, and longer limitation periods for violations and offences.
  • Identifying Additional Scheduled Navigable Waters: Bill C-69 proposes a better process with clear criteria for identifying navigable waters that should receive extra oversight for the purpose of adding them to the Schedule. In particular, Transport Canada will provide extra oversight for navigable waters that need it the most and those that are of greatest importance to Canadians, including eligible Heritage and longest wild and free-flowing rivers.

As part of the federal government’s review of environmental assessment and regulatory processes, is is proposing a new, broader impact assessment approach to assess environmental, health, economic, and social impacts. Under the Canadian Navigable Waters Act, approvals for designated major projects on any navigable water will only be issued after the new comprehensive impact assessment is complete and the project is approved.