Frequently Asked Questions
- Questions about the Navigation Protection Act
- Questions about navigable waters
- Questions about works
- Questions about the transition to the NPA
Questions about the Navigation Protection Act
Question 1: What is the “public right of navigation”?
Answer: The public right of navigation is generally the right to free and unobstructed passage over navigable waters. This is a right that has long been recognized in law.
Question 2: What is the Navigation Protection Act?
Answer: The Navigation Protection Act (NPA) is an Act of Parliament that authorizes and regulates interferences with the public right of navigation. A primary purpose of the NPA is to regulate works and obstructions that risk interfering with navigation in the navigable waters listed on the schedule to the Act. The NPA also prohibits the depositing or throwing of materials that risk impacting navigation in navigable waters and the dewatering of navigable waters.
Question 3: Who does the NPA apply to?
Answer: The NPA can apply to anyone—including industry, all levels of government, and the public—dealing with interferences to navigation or contemplating an activity impacting navigation in navigable waters.
Question 4: Who administers the NPA?
Answer: Transport Canada administers the NPA through the Navigation Protection Program (NPP).
Question 5: What are the fees for services associated with the NPA?
Answer: While there is an authority under the NPA to set fees, no fees have been set by the department at this time. Stakeholders will be consulted on the potential future development of a fee structure.
Question 6: How is the NPA related to the former NWPA?
Answer: In 2012, the federal government approved amendments to the Navigable Waters Protection Act. Some of the changes included:
- changing the name to the Navigation Protection Act to better reflect its intent;
- adding a schedule to the Act that lists those navigable waters for which regulatory approval is required for works that risk a substantial interference with navigation; and
- offering owners of works in non-scheduled navigable waters the opportunity of opt-in, rendering these works subject to the Act.
The amendments to the NWPA received Royal Assent in December 2012. Subsequently, the Navigation Protection Act came into force in April 2014.
Question 7: What are “navigable waters”?
Answer: For purposes of the NPA, a navigable water includes a canal and any other body of water created or altered as a result of the construction of any work and are those waterways where the public has a right to navigate the water as a highway. The following questions are considered when determining if a waterway is a navigable water:
- Do the physical characteristics of the waterway support carrying (floating and traversing) a vessel of any size (e.g., canoe/kayak) from one point to another?
- Is there information (i.e., evidence) of current use by the public of the waterway as an aqueous route for navigation purposes either as a self contained route or as part of a navigation network extending beyond the boundaries of the specific waterway?
- Is there information (i.e., evidence) of historical or past use by the public of the waterway as an aqueous route for navigation purposes either as a self contained route or as part of a navigation network extending beyond the boundaries of the specific waterway?
- Is there a reasonable likelihood of use by the public as an aqueous highway?
Question 8: What is a “scheduled” navigable water?
Answer: A scheduled navigable water is one included on the List of Scheduled Waters under the NPA. The List of Scheduled Waters—also referred to as the “schedule”— includes the busiest navigable waters in Canada. Part 1 of the schedule lists 3 oceans and 97 lakes, and Part 2 lists 62 rivers.
Question 9: How were these navigable waters chosen for the schedule?
Answer: The schedule is focused on navigable waters that support busy commercial or recreation-related navigation, are accessible by ports and marinas, and are often in close proximity to heavily populated areas. Nautical charts compiled by the Canadian Hydrographic Service, reliance on departmental historical data, and information acquired through Statistics Canada related to freight movement on Canadian waterways were used to compile the list.
The navigable waters listed on the schedule are identified using names specified by the Atlas of Canada, the official naming database for geographical features in Canada. The Atlas of Canada database is provided by Natural Resources Canada and is supported by a Geographic Information System dataset.
Question 10: Can navigable waters be added to the schedule?
Answer: The schedule may be modified by adding or removing a navigable water. This can be done by regulation.
Question 11: How is navigation protected in non-scheduled navigable waters?
Answer: The public right of navigation, the right to use navigable waters as a highway, is protected in Canada irrespective of whether the navigable water is listed on the schedule to the NPA or not. Interferences with the public right of navigation in navigable waters not listed on the schedule to the NPA could be subject to court proceedings. Transport Canada will issue reference material to assist builders in addressing navigation-related impacts of their works.
Questions about navigable waters
Question 12: What is a work for purposes of the NPA?
Answer: A work, for purposes of the NPA, is anything, whether temporary or permanent, that is made by humans, and that is in, on, over, under, through or across any navigable water in Canada. It also includes the dumping of fill or the excavation of materials from the bed of any navigable water and the dewatering of any navigable water.
Question 13: Who is an owner?
Answer: An owner is the actual “owner” of a work or the owner’s agent, and includes anyone who claims ownership of the work and is responsible for the construction, placement, alteration, repair, rebuilding, removal, decommissioning, maintenance, operation, safety and use of the work. It also includes someone who is proposing to construct or place a work in a navigable water.
Question 14: What is a Notice to the Minister?
Answer: The NPA requires owners to provide Notice to the Minister (of Transport) about certain works on navigable waters in Canada. For purposes of the NPP, the Notice must include a “Notice of Works” form and all required attachments and additional information. The detailed information submitted in a Notice to the Minister is required for the NPP to identify likely interferences with shipping and boating activities.
A Notice is required for all work on navigable waters listed on the schedule to the NPA (except minor work) and may be required for works on other waters if the owner's Opt-in Request has been accepted or if the owner has not informed the NPP of their choice to opt-out. Where required, Notice to the Minister must be provided by anyone who proposes to construct, place, alter, repair, rebuild, remove or decommission a work. This applies even if the work has already begun or has been completed.
Question 15: What is an Application for Approval?
Answer: An Application for Approval is similar to the Notice to the Minister (see previous question), however, the Application for Approval is only required if the NPP assessment of impacts to navigation finds that the work is likely to substantially interfere with navigation.
Questions about works
Question 16: What information is required in a Notice to the Minister?
Answer: The minimum information requirements for a Notice to the Minister include:
- Completed “Notice of Works” form (all mandatory fields completed)
- Location map (indicating the exact location of the work)
- Legal site description and work position (in latitude and longitude)
- Plan view drawings (top down) complete with all relevant dimensions
- Profile view drawings (side view) complete with all relevant dimensions
- Project description (detailing the project)
- Construction methodology (outlining how the work will be undertaken)
- Anticipated start and end dates
Question 17: What happens after I submit a Notice to the Minister?
Answer: The NPP has a process in place for managing submissions.
Screening: When the NPP receives a Notice to the Minister, the Notice is first screened to make sure that the work is subject to the NPA, all required information has been provided, and that the work is not a designated work listed in the Minor Works Order.
Assessment: Following the initial screening, a Notice to the Minister is assigned to an NPP officer and the work is assessed for likelihood of interference with navigation. Sometimes other steps may be required, such as an environmental review, Aboriginal consultation, or public advertising.
Decision: Following the navigation impact assessment, the work may be issued a ministerial approval or deemed a permitted work. Approval may be denied if the impacts to navigation are unacceptable. Terms and conditions may apply to an approved work or a permitted work.
Question 18: What does “likely to substantially interfere with navigation” mean?
Answer: For the purposes of the NPA, “likely to substantially interfere with navigation” means that the work will, for example, significantly change the way vessels pass down a navigable waterway or may make passage dangerous to the public. When a work is assessed as substantially interfering with navigation, section 6 of the NPA applies.
Question 19: What does “not likely to substantially interfere with navigation” mean?
Answer: For the purposes of the NPA, “not likely to substantially interfere with navigation” means that the work will, for example, not change a vessel’s passage in a significant way or make it more dangerous to navigate the waterway. When a work is assessed as not substantially interfering with navigation, section 9 of the NPA applies.
Question 20: What are the differences between an approved work, a permitted work, and a designated work?
- Approved works are works that are approved by the Minister after being assessed as likely to substantially interfere with navigation.
- Permitted works are works that may proceed without the Minister’s approval, after determination by the Minister that they are not likely to substantially interfere with navigation. These works are deemed compliant with the NPA if they meet regulatory requirements and any terms and conditions applied to the project.
- Designated works are works that may proceed without Notice under the NPA, as long as they comply with the requirements of the Minor Works Order.
Question 21: What is the Minor Works Order?
Answer: The Minor Works Order allows for works to be built if they meet the criteria for the applicable class of works, as well as specific terms and conditions for construction.
Works meeting the assessment criteria of the Minor Works Order are classed as “designated works” under the NPA and may proceed without a Notice to the Minister as long as they comply with the legal requirements.
Question 22: What do I need to do if I’m required to publish information about my project?
Answer: You may be required to publish information about your project, for example, in the Canada Gazette and/or through advertisements in local newspapers. You will be informed if you are required to publish, and detailed instructions will be supplied by the NPP.
Question 23: Are environmental reviews and Aboriginal consultations part of the NPP assessment process?
Answer: Environmental reviews and Aboriginal consultation processes are not part of the NPP navigation impact assessment. However, requirements for these processes can often run concurrently with an NPP assessment and may be integral to the final regulatory decision.
Question 24: Can works in non-scheduled navigable waters be reviewed and regulated under the NPA?
Answer: Owners of projects may wish to have their work reviewed in order to proceed with the added assurance that the work’s interference with navigation is sanctioned under the NPA.
The NPA includes an “opt-in” provision that allows the owners of works in non-scheduled navigable waters to ask for assessment and review of their work under the NPA. The Minister may accept or refuse an opt-in request.
Question 25: How can I make a request for a work to opt in to the NPA regime?
Answer: Owners can submit an Opt-in Request to the NPP. Contact your regional office for guidance. The minimum information that must be provided with an Opt-in Request includes:
- Waterway characteristics (to determine navigability of the waterway),
- An indication that the work meets “work” definition in NPA s.2,
- A summary of navigation impacts that may require mitigation,
- A complete Notice to the Minister.
Question 26: What happens if a work in a non-scheduled navigable water interferes with navigation?
Answer: The public right of navigation is protected in all navigable waters under Common Law, whether the waterway is listed on the schedule or not. Some works in non-scheduled waters are covered by the NPA, such as works that have been opted in to the NPA regime. Concerned stakeholders may contact Transport Canada to find out if the work in question is covered by the NPA.
If the work suspected of interfering with navigation is not covered under the NPA, stakeholders are encouraged to seek legal advice in respect of Common Law protection of the right to public navigation.
Question 27: Do applications for pipeline projects still need to go through the NPA?
Answer: Amendments to the National Energy Board Act now give the National Energy Board (NEB) and the Governor in Council exclusive authority over international and interprovincial pipeline approvals.
Some pipelines not regulated by the NEB meet the Minor Works Order criteria for pipelines. In this case, these pipelines are not subject to the review and authorization requirements under the NPA.
Other pipelines may not be regulated by the NEB and may be subject to an NPA authorization if on a waterway listed on the schedule. In this case, an NPA authorization may be required.
Questions about the transition to the NPA
Question 28: What happens with existing works in non-scheduled waters?
Answer: The NPA transitions every work approved under the Navigable Waters Protection Act into the NPA regime. Consequently, any term or condition imposed on a work under the NWPA remains in effect.
Owners of works in non-scheduled waterways have the option to opt-out of the NPA within five years of the coming into force date (i.e., before April 1, 2019).
Question 29: What happens with projects being reviewed under the NWPA at the date that the NPA came into force?
Answer: Any works under review, be it in scheduled or non-scheduled navigable waters, will transition into the NPA regime and the review process will continue uninterrupted. Owners of works under review in non-scheduled waters may also choose to opt out of the NPA regime by withdrawing their application.
Question 30: How do I withdraw an application submitted under the NWPA?
Answer: Owners of works on non-scheduled navigable waters who have submitted an application under the former NWPA may make a formal request to withdraw the application, if the review process has been initiated but an approval has not yet been granted.
In order for the NPP to process a request to close a file, the owner must provide notice of their decision to withdraw the application. This notice must include identifying information; at minimum, the owner and location of the work, and TC file number, and a signature confirming ownership (or the legal right to act on behalf of the owner) and indicating that the owner understands the implications of withdrawing from the NPA works regime.
Requests to withdraw multiple applications must provide the above information for each application.
Question 31: How can I opt out of the NPA regime?
Answer: Owners of works in non-scheduled navigable waters may opt out of the NPA regime within five years of the NPA coming into force. The decision to opt out of the NPA regime belongs to the owner of the work.
The owner must provide notice of their decision to opt out in order for the NPP to close the file. This notice must include the following identifying information:
- Name of owner
- Official and/or local name(s) of body of water
- Description of work
- Site description
- Latitude and longitude
- Applicant file number
- A file number from any previous correspondence
The notice must also include a signature confirming ownership (or the legal right to act on behalf of the owner) and indicating that the owner understands the implications of withdrawing from the NPA works regime.
The opt-out option expires on the five-year anniversary of the coming into force of the NPA (April 1, 2019). After that time a transitioned work can no longer opt out.