The Canadian Navigable Waters Act

Restoring Lost Protections and keeping Canada’s Navigable Waters open for public use for years to come

Overview

What are we doing

Handbook

In the Speech from the Throne, the Government of Canada promised to review and modernize environmental and regulatory processes and introduce new processes that properly serve the public.

In June 2016, the Government launched a comprehensive review to address concerns about previous reforms to environmental assessment processes, lost protections for our fish and waterways, and the need to modernize the National Energy Board.

The Government has delivered on its promise by introducing new legislation that improves and modernizes environmental assessments and regulatory processes. This milestone was informed by over 14 months of public, stakeholder and Indigenous consultations, Expert Panel reports and Parliamentary studies.

We are restoring lost protections so that recreational boaters and Indigenous peoples can continue to travel Canada’s vast network of rivers, lakes and canals for years to come.

Canada’s large network of navigable waters must remain open for Canadians to use. Protecting the public right of navigation is an important element of the new environmental and regulatory system in which good projects go ahead sustainably, with certainty and timely decisions, creating shared value and benefit for Canadians.

Canada must protect the public right to navigate on all Canadian navigable waters

Why are we doing it

Canadians rely on Canada’s coasts, lakes, rivers, and other bodies of water for travelling, for shipping goods, and for enjoying recreational activities like canoeing and kayaking.

We heard that many Canadians were concerned that legislative changes in 2012 reduced protections for navigable waters in Canada. Once the legislation is adopted, the Canadian Navigable Waters Act will:

Once law,the Canadian Navigable Waters Act will help the Government of Canada keep its promise to better protect the public right to travel Canada’s navigable waters, restore public trust while providing shared benefits to Canadians, Indigenous peoples and businesses

Overview Box:

During our consultations, we heard that Canadians:

We also heard that government departments need to continue to work together to develop and promote an efficient environmental and regulatory system that contributes to better project planning.

What it will improve

The proposed Canadian Navigable Waters Act would provide new protections on all navigable waters, with greater oversight for navigable waters where it is needed most and that are of greatest importance to Canadians and to Indigenous peoples, including eligible Heritage and longest wild and free-flowing rivers.

The proposed legislation would also include new modern safeguards that provide greater transparency in navigation-related decision-making and processes and would provide opportunities for local communities to have a say in projects that could affect navigation.

Purpose

This document outlines the key changes to navigation protection legislation and next steps, based on the following five themes:

The new impact assessment system – Transport Canada’s role

The government is proposing a new impact assessment approach to assess environmental, health, economic, and social impacts, including gender-based analysis, to provide a more fulsome picture of a project’s impacts on communities to better inform decision-making. The new impact assessment regime will ensure that the right projects undergo an impact assessment. The government has launched a process to seek Canadians’ feedback on reviewing and revising the project list to ensure that projects with the greatest potential for environmental impacts in federal jurisdiction are captured.

Under the Canadian Navigable Waters Act, approvals for designated major projects on any navigable water would only be issued after the new comprehensive impact assessment is complete and the project is approved.

Protecting the Public Right of Navigation on all navigable waters in Canada through the Canadian Navigable Waters Act

What are the key changes?

The Canadian Navigable Waters Act would restore lost protections and provide new modern safeguards on all navigable waters in Canada, including:

Graphic box:

Note: Works are any structure, device or thing — temporary or permanent — made by humans that is in, on, over, under, though or across any navigable water. They can be small works like docks or large works like dams.

Restored protections and modern safeguards for the public right of navigation would allow Transport Canada to oversee navigation protections in all navigable waters in Canada, including those the existing law does not protect.

What works are assessed?

The Canadian Navigable Waters Act would require proposed major works (such as large dams) to receive an approval before building begins on all navigable waters in Canada.

Note: Transport Canada would work with Canadians, stakeholders and Indigenous groups to identify the types of works that pose the highest risk to navigation and include them in a “major works” category.

The Canadian Navigable Waters 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 Canadian Navigable Waters 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, are subject to pre-determined requirements on all navigable waters. Where minor works meet these requirements they do not need to seek approvals.

What are Scheduled navigable waters?

The Canadian Navigable Waters Act includes protections for navigation on all navigable waters in Canada. Scheduled navigable waters are listed on a Schedule to the Act so that any works in those waterways that may interfere with navigation can receive extra oversight.

The Canadian Navigable Waters Act includes new criteria and a better process for adding ‎navigable waters to the list. For example, the waterways that would be considered for inclusion are those with the greatest need for extra oversight and of greatest importance to Canadians and Indigenous peoples, including eligible Heritage and wild and longest free-flowing rivers.

Navigable waters could be added to the Schedule based on the following factors:

  • whether the waterway is charted;
  • its physical characteristics;
  • how it connects with other navigable waters;
  • the safety of navigation;
  • past, current and anticipated use;
  • use by Indigenous peoples to exercise their rights; and
  • the cumulative impact of works on navigation in the waterway.

When would Canada expand the number of navigable waterways on the Schedule receiving extra oversight?

As the proposed legislation goes through the Parliamentary process, Transport Canada will continue to engage with Canadians on the navigable waterways that should receive extra oversight (listed in the Schedule) under the Canadian Navigable Waters Act. A Ministerial Order to add new navigable waters to the Schedule would be made should the Bill enter into law.

How are Navigable Waters defined in the Canadian Navigable Waters Act?

The new, detailed definition would include any body of water that is used (or is reasonably likely to be used) by vessels:

Note: This definition may increase the number of waters considered navigable. It is not intended to capture ditches and irrigation channels.

What is an Obstruction?

An obstruction is anything that prevents or slows navigation, or makes it more difficult or dangerous. Wrecks or vessels that are left anchored, moored or adrift can be obstructions.

How will Transport Canada address risks from Obstructions?

The Canadian Navigable Waters Act would enable the Minister of Transport to more fully address obstructions and potential obstructions on all navigable water in Canada, by:

The Minister’s power to address abandoned and wrecked vessels, by allowing any person to take possession and remove an abandoned or wrecked vessel, would be expanded to apply in all navigable waters. This power would be transferred to the Wrecked, Abandoned or Hazardous Vessels Act (as proposed in Bill C-64), once enacted.

For more information, please visit: https://www.canada.ca/en/transport-canada/news/2017/10/national_strategytoaddresscanadaswreckedandabandonedvessels.html.

Greater openness, transparency and public participation opportunities

What will be different?

The Canadian Navigable Waters Actwould give local communities and Indigenous peoples an opportunity to have a say in projects that could affect their navigation, because it would require owners to:

The Act would also include new, modern safeguards such as:

What tools are available to a community if a proposed work could affect someone’s public right of navigation?

The proposed Canadian Navigable Waters Act would require owners to provide information and issue a public notice and give an opportunity for engagement about proposed works (except for minor works meeting the assessment criteria) before construction can begin on any navigable water. The new notification requirements would allow communities to ask questions, raise concerns and propose solutions early in the development process. An important tool for communities to be informed of proposed works is the new public registry, a new modern safeguard to allow for greater transparency in navigation-related decision-making and processes.

Notification requirements would vary depending on the type of work and where it is located:

For works that are located on navigable waters not listed on the Schedule:

For works (except for minor works meeting the assessment criteria) located on navigable waters listed on the Schedule and major works on all navigable waters:

A greater focus on partnering with Indigenous peoples

Reconciliation requires sustained government-wide action and needs to be at the center of our activities. Early and inclusive opportunities for engagement and participation with Indigenous peoples, and consultation that aims to secure free, prior and informed consent through processes based on mutual respect and dialogue is at the heart of the Canadian Navigable Waters Act. Partnerships with Indigenous peoples must recognize and respect their:

The Canadian Navigable Waters Act would create new opportunities for Indigenous peoples to partner with Canada. For example, it would:

Strong enforcement and predictable and timely processes

Canadians have told us they want the navigation protection system to remain efficient and predictable and include the power to enforce the rules. This is why the proposed legislation would provide greater powers to enforce the new Act. These enforcement tools would allow us to better protect the public right of navigation.

What are the proposed enforcement tools?

The Canadian Navigable Waters Act would provide greater powers to enforce the Act. These would include:

Next Steps

The Government of Canada’s proposed environmental and regulatory system, if adopted, will put in place better rules to:

Visit canada.ca/environmentalreviews for more information.

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