Amendments to the Navigable Waters Protection Act

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Amendments to the Navigable Waters Protection Act
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History

• Administered by the Navigable Waters Protection
  Program (NWPP) within the Marine Safety
  Directorate of Transport Canada
• Written in 1882 one of the oldest pieces of
  legislation in Canada
• Enacted to protect the public right of navigation
  in Canada - a right enshrined in English Common
  Law
• Provides Transport Canada with the power to
  approve the construction or alteration of works
  in, on, over and under any navigable water in
  Canada that may interfere with the public right
  of navigation
• Provides Transport Canada with the authority to
  order the removal of obstacles to navigation

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Background

• June 2006 - Associate Deputy Minister requests
  Transport Canada to undertake a review of the
  NWPA
• October 2006 - NWPA Modernization Project Team
  formed and policy review commences
• February 2008 - Officials from TC appeared before
  Standing Committee on Transportation,
  Infrastructure and Communities (SCOTIC) to
  propose review for new legislation based on
  policy framework
• Feb to April 2008 - Committee hears testimony
  with specific focus on those sections that could
  be resolved expediently

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Background (contd)

• June 2008 - Committee released its Report on
  endorsing the proposed amendments to the NWPA.
• September 2008 - election called prior to tabling
  of Response
• December 2008 - Deputy Minister Taskforce on
  Accelerating Infrastructure Projects recommends
  proceeding with Amendments to the NWPA as part of
  Budget Implementation Act 2009
• March 2009 Royal Assent

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Key Changes to the Act

• The Act now incorporates the following ten
  amendments
• AMENDMENT 1 New provision specifying that the
  NWPA is binding on Her Majesty in right of
  Canada, a province and the Territories.
• AMENDMENT 2 New definition of work providing
  greater clarity to applicants and greater
  flexibility for the Minister.
• AMENDMENT 3 New provision permitting the
  Grandfathering of Crown Works.
• AMENDMENT 4 Deletion of specific reference to
  the four named works under subsection 5(2) of
  the NWPA.
• AMENDMENT 5 Creating the Authority in the Act
  for the Minister to make Orders.

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Key Changes to the Act

• AMENDMENT 6 Creating new Regulation-making
  powers in the Act.
• AMENDMENT 7 Removal of Section 13 - Approval of
  bridges over the St. Lawrence River.
• AMENDMENT 8 New inspection and investigative
  powers, increased fine limits and newly created
  continuing offence provision in the Act.
• AMENDMENT 9 Inclusion of a five-year review
  clause.
• AMENDMENT 10 Consequential amendments, as
  required, are proposed to remedy oversights in
  the current Act and to improve the internal
  coherence of the Act

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Changes to EA Process

• CEAA triggers Subsection 5(2), 6(4),as well as
  sections 16 and 20
• Substantial interferences to navigation will
  require an EA
• CEAA Law List requires amendment to reflect
  changes to NWPA
• Existing Crown works will no longer trigger CEAA

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The amended Act.

• Focuses legislative oversight to waterways of
  navigational value and to works that interfere
  significantly with navigation
• Provides a more timely and predictable process
  for the review and approval of critical
  infrastructure development and refurbishment
  projects in support of the streamlining for
  Infrastructure initiative
• Eases the ever-increasing pressures to respond to
  complex natural resource projects, growing
  environmental assessment responsibilities and
  increasing consultation responsibilities in a
  timely manner

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Public Reaction

• There was wide support from a broad range of
  stakeholders for the amendments to the NWPA.
• Changes to the Act have been perceived negatively
  by some
• Environmental Non-governmental Organizations
  (ENGOs) have concerns over what they perceive to
  be a potential reduction in the number of
  environmental assessments
• Canoe and kayak associations perceive that any
  changes to the NWPA may result in a loss of
  protection of smaller waterways

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Next Steps

• Develop external communication products for
  proponents and the boating public
• Communicate changes in the Act to the Public
• Commence with development of regulations
  utilizing the formal regulatory development and
  review (public consultation) process

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• Questions?