Navigation Protection Act

The Navigable Waters Protection Act (NWPA) is one of Canada’s oldest pieces of legislation, dating from 1882 at a time when our waterways were Canada’s primary transportation routes. Originally called An Act respecting Bridges Over Navigable Waters Constructed Under the Authority of Provincial Acts its main purpose was then, and is still, to make legal the construction of works such as bridges and docks in waterways that might otherwise violate the common law right of navigation.

Over time however, the scope and application of the Act has significantly expanded due to many factors such as amendments, judicial decisions and changes in operational practices of mariners. The Act now applies to all waters in Canada that can float a canoe including some brooks and streams that are only full for a few weeks during the spring runoff and other waters that are not normally navigated.

For example, the City of Moncton applied to build a culvert under highway in Fox Creek, which is so small as to practically non usable. The NWPA approval was delayed by 8 months and resulted in extra costs to the City of Moncton.

A transmission line built by Hydro Quebec for Sarcelle-Eastmain-1 took 13 months to be approved despite the fact that the design had already met the CSA standards for transmission line construction over navigable waters.

Lake Wabamum, near Edmonton has an oval shape that makes it easy for cottagers to build docks and boathouses along its edge without impacting navigation. Transport Canada was still obliged to process roughly 80 applications on this lake over three years.

These pointless assessments waste time and money while creating a backlog that slows assessments in major waterways where commercial navigation is a real issue.

Reforms are needed to cut through red tape.

The most recent amendments were passed in 2009, and led to the implementation of the Minor Works and Waters (NWPA) Order. The Order enables low risk works that meet certain criteria to be pre-approved under the Act.

New proposed amendments to the Act not only build on the 2009 improvements, but seize the opportunity to create a modern, robust, and flexible legislative scheme that can effectively respond to current and future needs of Canadians. Ultimately, these amendments will better facilitate economic growth, and more effectively support the efficient movement of marine traffic in the context of infrastructure developments that impact navigation.

This initiative is in line with the Government of Canada’s commitment to returning to balanced budgets, streamlining the regulatory process, eliminating red tape and encouraging long-term economic growth and job creation.

From an environmental perspective, our waters will continue to be protected through the Canadian Environmental Assessment Act 2012, the Canadian Environmental Protection Act, the Species at Risk Act, and the Fisheries Act.

Proposed amendments to the Navigable Waters Protection Act establish an administrative monetary penalty scheme. Under this scheme the maximum penalty for violation is $5,000 in the case of an individual, and $40,000 in any other case.

Under the proposed amendments, non-compliance with certain provisions may constitute an offence under the Act. Persons found guilty of committing an offence may be liable on summary conviction to a term of imprisonment of not more than six months, or to a fine of not more than $50,000, or both.

October 2012