Adding navigable waters to the new Canadian Navigable Waters Act Schedule

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Introduction

In February 2018, the Government of Canada introduced proposed legislation (Bill C-69) which would enact the Impact Assessment Act and the Canadian Energy Regulator Act, amend the Navigation Protection Act, and make consequential amendments to other Acts.

Bill C-69 would put in place better rules to protect our environment, fish and waterways, and rebuild public trust in how decisions about resource development are made.

Proposed changes to the Navigation Protection Act proposed in Bill C-69 would create a new Canadian Navigable Waters Act (CNWA). This new Act would:

  • restore and better protect your right to move freely over Canada’s waterways
  • advance reconciliation with Indigenous peoples
  • create more accessible and transparent decision-making processes

The proposed CNWA would introduce new protections for all navigable waters, and a new process for adding navigable waters to the Schedule.

Why does the Schedule matter?

A key purpose of the Navigation Protection Act is to regulate "works" that may interfere with navigation in navigable waters. Works include 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.

The Navigation Protection Act uses a list of waterways (known as the "Schedule") to identify navigable waters where project proponents must apply to Transport Canada for approval. The current Schedule lists 164 navigable waters, including the 3 oceans.

The proposed CNWA would keep the Schedule, and introduce a better process with clear criteria for adding navigable waters to the Schedule. The CNWA would also introduce new protections for all navigable waters.

These new protections include a new public notification and resolution process for works on non-scheduled navigable waters. This process would allow Canadians to have a say in projects that impact their right to navigation, and allow their navigation related concerns to be addressed on any navigable water in Canada.

In addition, the proposed CNWA would introduce a new category for “major” works that could significantly interfere with navigation, which would always require an application for approval from Transport Canada on all navigable waters (scheduled and non-scheduled).

Objective

This discussion paper seeks views on:

  • The process for adding navigable waters to the Schedule
  • Information needed when applying to add navigable waters to the Schedule
  • How to tailor this application process for Indigenous peoples

What we heard

During our review of the Navigation Protection Act, we heard a range of views about continuing to use the Schedule. Some people said the Act should apply to all navigable waters in Canada. Some supported the existing Schedule. Others wanted an expanded and more flexible Schedule.

We heard that we need to:

  • better articulate how we determine when a water is navigable
  • broaden the definition of navigable waterFootnote 1 to consider Indigenous and treaty rights

People also wanted to expand the Schedule to include Heritage Rivers and other navigable waters that are important to Canadians and Indigenous peoples.

Proposed Approach

We are committed to expanding the Schedule, using a process that is easier and more inclusive, where anyone can apply to add waterways to the Schedule of the Act.

Here is our proposal for the new process.

How we could assess waterways

Waterways would be assessed using a two-step process:

  • Step 1: Determine whether the waterway is a navigable water within the CNWA's definition
  • Step 2: Analyze the waterway against 7 key factors listed in the proposed CNWA

Step 1:-Determining Navigability

A waterway would need to meet the definition of "navigable water" under the proposed Act in order for us to consider including it in the Schedule.

The definition in the proposed Act has 2 elements: a) use, and b) accessibility.

  1. Use for transport or travel: If the body of water is used or has a reasonable likelihood to be used by vessels for transport or travel, it's useable. This includes commercial use, recreational use, or use by Indigenous peoples to exercise their rights.
  2. Accessibility: The body of water is considered to be accessible if:
    • the public can access it by land or by water
    • it has two or more riparian ( waterfront) owners, or
    • it is owned solely by the Crown
    If the waterway is both usable and accessible, it meets the definition of a navigable water and may be eligible to be included in the Schedule.

We will develop an online tool to help applicants to figure out whether the waterway they're proposing is navigable.

Step 2: Analyze the navigable water using key factors

If the waterway is navigable, an applicant would be able to go ahead with their application.

The proposed Act lists 7 factors Transport Canada would consider when deciding whether to add a navigable water to the Schedule:

  1. Is the navigable water on a nautical chart issued officially by or on the authority of the Canadian Hydrographic Service?
  2. What are its physical characteristics?
  3. Does it connect to other navigable waters (and if so, how)?
  4. Is it safe to navigate there?
  5. What is the past, current or anticipated navigation through the waterway?
  6. Are there Indigenous peoples of Canada who navigate, have navigated or will likely navigate this waterway in order to exercise their rights recognized and affirmed by section 35 of the Constitution Act, 1982?
  7. What is the overall the cumulative impact of works on navigation in the waterway?

Applications wouldn't need to meet all 7 factors in order to be considered, but meeting a greater number of factors would impact our decision about whether to add the waterway.

We would assess applications on a case-by-case basis.

Process for adding navigable waters to the Schedule

1. Submission of applications

We're developing a formal application process to ensure we have all the information we need to assess proposed navigable waters. Anyone could submit an application.

We will launch our first formal application process in early 2019. This timing would allow us to promptly add new navigable waters to the Schedule should the proposed legislation (Bill C-69) pass into law.

Following this first application process, we will continue to accept and review applications on an ongoing basis. Eligible navigable waters will continue to be added to the Schedule periodically, depending on the volume of navigable waters to be added.

If you want to request the addition of a navigable water to the Schedule, we encourage you to begin gathering the following information:

  • a description of how the waterway is accessible to the public
  • confirmation of whether there are two or more waterfront owners
  • if there is a single waterfront owner, confirmation of whether the owner is the Crown or a province
  • confirmation of whether the waterway is on a nautical chart
  • the waterway's:
    • average depth and width
    • size of basin
    • length
  • description of any natural obstructions (for example, falls, rapids, beaver dams, a steep drop, vegetation, etc.) that could impact navigation
  • list of any navigable waters the waterway is connected to, and a description of its physical characteristics
  • number of days in a year it can be used for navigation
  • list of works on the waterway (for example, bridges, booms, dams, causeways, terminal facilities, break walls, infills, artificial islands, marinas, aerial cables, etc.) and a description of their cumulative impact on navigation
  • information about navigation safety concerns, including accidents or incidents that happened there
  • description of past, present and future recreational or commercial navigation use
  • description of past, present and future use by Indigenous peoples to exercise their rights (for example, to fish, hunt, trap, harvest or use the waters for cultural reasons).

2. Assessment of applications

During this stage, we would assess applications and publish a list of navigable waters we find to be eligible. This list would be online for public comment for 30 days.

3. Additions of navigable waters to the Schedule

Applications for waterways that meet the definition of a navigable water and other criteria, would be added to the Schedule. This would happen through a Ministerial Order that amends the Schedule.

Tailored Process for Indigenous applications

In order to support Indigenous groups who want to request the addition of navigable waters to the Schedule, we're proposing a tailored process. This process would aim to address barriers to participation, such as financial constraints and technical and administrative capacity.

The tailored process for Indigenous peoples could include the following elements:

  • Providing funding and dedicated Transport Canada staff to support Indigenous groups who want to add navigable waters to the Schedule.
  • Providing funding to establish an Indigenous resource person(s) to support Indigenous groups who want to add navigable waters to the Schedule.
  • Providing additional opportunities for information sharing between Transport Canada and Indigenous groups who want to add navigable waters to the Schedule (for example, during the assessment and decision phases of the process).

Depending on the feedback we get, we may adjust this tailored process.

Share your views

We look forward to your comments on the proposed approach for adding navigable waters to the Schedule. We will consider all feedback to refine the proposed process.

Please share your views at Let's Talk Navigation or by contacting us at NPPHQ-PPNAC@tc.gc.ca by January 15, 2019.

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