Environmental, Indigenous and Natural Resources Blog

Among the extensive changes to the Canadian environmental legislation introduced through Bill C-69, the Federal Government will also amend the current Navigation Protection Act and rename it the Canadian Navigable Waters Act ("CNWA"). Key changes to the navigable waters regime include:

• A comprehensive statutory definition of 'navigable water' that broadens the scope of federal regulatory power and includes considering means of transport or travel of Indigenous peoples of Canada;
• A new approval scheme for minor and major works on any navigable water, including those that are not listed on the schedule;
• New criteria and process for adding navigable waters to the schedule;
• A new list of assessment factors for the Minister to consider when deciding to issue an approval as well as enhanced enforcement powers of the Minister with respect to obstructions on navigable water; and
• The consideration of adverse effects on the rights of Indigenous peoples.

A Historical Look

One of the oldest Canadian environmental laws, the Navigable Waters Protection Act ("NWPA") was amended in 2009 and again in 2012 when it was renamed the Navigation Protection Act ("NPA"). As the name change would suggest, the focus of the 2012 amendments were on navigation of waterways that supported busy commercial or recreation - related navigation. A List of Scheduled Waters was introduced in 2012 and only those navigable waters listed on the schedule require owners of works to obtain regulatory approval. Upon the request of the Minister of Transport, the Standing Committee on Transport, Infrastructure and Communities reviewed the existing NPA and released its recommendations in its report, A Study of the Navigation Protection Act, on March 23, 2017. The federal government has released its reasons for changing the NPA and a handbook on the CNWA earlier this year.

Proposed Changes of the CNWA

Broader Definition of “Navigable Waters”

The new definition of 'navigable water' includes any body of water "that is used or where there is a reasonable likelihood that it will be used by vessels, in full or in part, for any part of the year as a means of transport or travel for commercial or recreational purposes, or as a means of transport or travel for Indigenous peoples of Canada…" Although a schedule of navigable waters remains in place, this new definition creates a broader scope of waters considered “navigable” and will be applicable to all navigable waters in Canada. The schedule of navigable waters provides additional protection of the listed waters with additional approval powers of the Minister. This is a significant shift from the current NPA regime that only requires approval for works affecting those navigable waters listed in the schedule.

New Approval Regime

The proposed amendments in Bill C-69 define minor work, major work, and work in the following ways:

• Minor work: works that are likely to slightly interfere with navigation.
• Major work: works that are likely to substantially interfere with navigation.
• Work:

 -  any structure, device, or other thing, whether temporary or permanent, that is made by humans, including a structure, device or other things used for the repair or maintenance of another work, and

-  any dumping of fill in any navigable water, or any excavation or dredging of materials from the bed of any navigable water.

Minor Works

An owner of a minor work may construct, place, alter, rebuild, remove or decommission a work in, on, over, under, through or across any navigable water as long as it is in accordance with the requirements under the CNWA. The owner must also repair, maintain, operate, and use the minor work in accordance with the requirement of the CNWA.

Non-Minor Works in a Scheduled Navigable Water

All major works that is to be constructed or placed on, over, under, through or across a scheduled navigable water that may interfere with navigation must obtain an approval from the Minister. Major works that interfere with navigation will be subject to the approval terms and conditions provided by the Minister. The proponent must also publish a notice containing information about the major work and a comment period that invites interested persons of the public to provide written comments. If the Minister is of the opinion that there will be no interference with navigation, no approval is required.

Works that are neither categorized as a minor work nor a major work in navigable waterways in the schedule will require a public notice and comment period and review and approval by the Minister.

Non-Minor Works in a Non-Scheduled Navigable Water

For works (other than minor works) in navigable waters not listed in the schedule, proponents have the choice of applying to the Minister for approval or inviting comments from the public.  If the latter option is chosen, notice of the proposed work is given to the public and written comments can be submitted within 30 days after the publication of the notice. If there are any expressed written concerns, the concerns must be resolved within 45 days of the end of the comment period. Any changes to the proponent's proposal as a result of the resolution of concerns must be published in a new public notice. If the concerns are not resolved within the prescribed time, the person who expressed the concern may make a request to the Minister for a decision on whether the proponent is required to apply for an approval in relation to the work.

Minister’s Considerations and Enforcement Powers

In deciding whether to issue an approval, the CNWA sets out new assessment factors to be considered by the Minister. These include:

• Any traditional knowledge of Indigenous peoples that have been provided to the Minister;
• Any comments that the Minister received from interested persons within a comment period triggered by a public notice;
• The record of compliance of the owner/proponent under the CNWA; and
• Any other information or factor that the Minister considers relevant.

There has also been an increase in the scope of Ministerial powers, as the Minister can order the person in charge of an obstruction or potential obstruction in a navigable water to repair, secure, move, remove, dismantle or destroy it in the manner that the Minister considers appropriate.

There has also been a significant increase in the scope of fines and penalties against those that contravene the provisions of the CNWA. For instance, an individual who is guilty of a prescribed offence is liable, on summary conviction, to a fine of not more than $100,000 on a first offence and to a fine of not more than $200,000 or to imprisonment for a term not more than six months on a second offence. A corporation is subject to a fine of not more than $500,000 on its first offence and not more than $1,000,000 on the second offence.

Moving Forward

With the first reading of Bill C-69 by Parliament completed on February 8, 2018, these proposed changes have yet to become enforceable law. The Bill is currently undergoing its second reading in Parliament. There are transitional provisions for work approved under the current NPA regime that will deem the terms and conditions approved under the NPA to still remain in effect under the CNWA. We will monitor Bill C-69 as it progresses and post significant updates as they become available.

For more information, please contact Shailaz Dhalla at sdhalla@lawsonlundell.com or a member of our Environmental & Regulatory Group.

Special thanks to articling student Grace Kang for her assistance in compiling this blog post.