Sea Change: The Canadian Navigable Waters Act

Written By David Bursey, Marie H. Buchinski, Venetia E.K. Whiting and Graeme Melcher

This article is Part III of a series that discusses the federal government’s proposed changes to Canada’s environmental regulatory regime governing project development and operation in Canada.

This post summarizes the changes to the Navigation Protection Act (NPA) as introduced by Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts.

Overall, the amended NPA will expand the scope of navigable waters subject to regulation and increase the Minister’s powers related to protecting those waters from unapproved obstructions.

Definition of Navigable Waters and Approvals for Works

The proposed Canadian Navigable Waters Act (CNWA) would increase protections for all navigable waters (as defined in the CNWA), rather than the limited list in the schedule to the current NPA.

The central focus of the CNWA is the new definition of “navigable water”:

navigable water means a 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 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 exercising rights recognized and affirmed by section 35 of the Constitution Act, 1982, and

(a) there is public access, by land or by water;

(b) there is no such public access but there are two or more riparian owners; or

(c) Her Majesty in right of Canada or a province is the only riparian owner.

The information package associated with the introduction of the CNWA describes the new definition as “more comprehensive” than the previous test of navigability based on the common law test—i.e., a navigable water must be part of an “aqueous highway”.

Under the CNWA, an owner may proceed with a “minor work” (to be defined by a schedule to the CNWA) without Ministerial approval. However, an owner of a “major work” (as scoped by a schedule to the CNWA) in any navigable water and all other works (other than minor works) in a navigable water that is listed in a schedule to the CNWA must apply for Ministerial approval.

Where an owner proposes a work that is not a major or minor work in a navigable water that is not listed in a schedule to the CNWA, the owner can either apply to the Minister for approval of the work or publish notice of the proposed work for public comment.

Where the Minister is determining whether to issue an approval for a proposed work, the CNWA requires that the Minister consider a broader range of factors, including:

• the impact on navigation of the proposed work in combination with other works;
• traditional Indigenous knowledge provided to the Minister;
• public comments; and
• the owner’s compliance record.

Indigenous Peoples of Canada

The proposed CNWA requires the Minister to consider any adverse effects upon Indigenous peoples of Canada that may result from any decision the Minister may make under the Act. The Minister must consider any traditional Indigenous knowledge provided to the Minister when determining whether to issue an approval and must treat that information as confidential, with some exceptions.

The Minister may add waters to the schedule of navigable waters under the Act after considering whether Indigenous peoples of Canada currently navigate, have previously navigated, or are likely to navigate such waters in exercise of their rights under section 35 of the Constitution Act, 1982.

Dewatering of a Navigable Water

Prohibitions on dewatering navigable waters are expanded under the CNWA. No person may lower the water level in a navigable water so that vessels of any class can no longer navigate the water, unless the Minister approves the work and is of the opinion that there are suitable measures in place to mitigate the impact of the dewatering on navigation.

The Minister has the authority to make orders necessary to restore the water level to an acceptable level. The prohibition on dewatering does not apply to historic canals as designated under the Historic Canals Regulations.

Ministerial Powers and Obligations

The proposed CNWA would give the Minister more discretion to order the owner of a work to repair/alter/remove a work. The current NPA requires that the Minister be “satisfied” that the work would interfere with the navigable water or not be in the public interest, while the proposed CNWA states that such orders may be made if the Minister “considers” such issues may be present.

The CNWA requires the Minister to establish and maintain a public registry of information related to navigable waters. The Minister retains discretion to determine the information to be included in this registry and to determine how the registry ought to be accessible to the public. However, the registry must contain only publicly-available records or records that would be disclosed in accordance with requests made under the Access to Information Act.

The proposed CNWA would also expand the scope of powers afforded to persons designated to ensure compliance with the Act. Designated persons would be given the authority to order the production of any document or information for the purpose of verifying compliance. They would also have authority to seize anything they have reasonable grounds to believe was used to contravene the CNWA or the regulations or that is related to such a contravention. Designated persons are not required to return the property if, in their opinion, it is “no longer useful” or if the original owner cannot be found.

Enforcement Measures

The Minister’s enforcement powers are expanded under the proposed CNWA. If a person fails to comply with an order, the Minister may issue an order to “do any thing” with respect to the work, wreck, obstruction etc. in the navigable water that he or she considers appropriate. The proposed CNWA also expands the Minister’s ability to issue orders to persons who dump fill into navigable waters without, or in violation of, Ministerial approval.

Penalties for violating designated provisions of the CNWA are increased up to a maximum of $50,000 (from $5,000) for an individual and up to a maximum of $250,000 (from $40,000) “in any other case.” Contraventions of other provisions of the CNWA would be “offences” under the Act, and may be punished on summary conviction:

• for an individual, a fine of not more than $100,000 for their first offence, and a fine of not more than $200,000 and/or a term of not more than six months’ imprisonment for subsequent offences; or
• for a corporation, a fine of not more than $500,000 for its first offence, and a fine of not more than $1,000,000 for subsequent offences.

The current maximum penalties are $50,000 and/or a term of not more than six months’ imprisonment for all offences and all offenders.

The limitation period for violations is also increased from six months under the NPA to two years under the CNWA, and the limitation period for offences under the CNWA is set at five years from the date on which a designated person becomes aware of the acts that constitute the offence.

Implications

Overall, the proposed CNWA would expand the scope of navigable waters subject to regulation and also strengthen regulation of those navigable waters. The CNWA expands the Minister’s powers to protect navigable waters, and increases Ministerial accountability and transparency for navigable waters protection.

Developers of works in any waters that meet the new definition of “navigable waters” should learn the requirements of the new regime so they know when to submit any work notices or approval applications.

Any notices given or applications submitted under the NPA but undecided at the time the CNWA comes into force will be deemed to have been made under the CNWA.

If you have any questions about the new CNWA, our team at Bennett Jones LLP would be pleased to assist you.

More on This Series

Part I: Federal Review of Environmental and Regulatory Processes Underway
Part II: Reshaping Canada’s Project Assessment Regime—Bill 69’s Ambitious Blueprint