INTRODUCTION

On 20 June 2016, the Minister of Transport, in concert with the Minister of Fisheries, Oceans and the Canadian Coast Guard announced the review of the Navigation Protection Act and the Fisheries Act.[1] In addition to consultations undertaken by Transport Canada, the Minister of Transport asked the House of Commons Standing Committee on Transport, Infrastructure and Communities (TRAN or the Committee) to undertake a study of the changes made in 2009 and 2012 to the Navigation Protection Act (NPA).[2]

The Committee agreed to undertake the study on 27 September 2016 and announced that the study would focus on:

• the environmental and sector impacts of the changes;
• the impact of the changes on the long-term viability of commercial and recreational utilization of Canada’s waterways;
• the cost, practicality and effectiveness of the changes when gauged against the environmental, business and recreational function of Canada’s waterways; and
• the efficiency of the changes when viewed holistically, from a user perspective, with other Acts that collectively impact upon users.[3]

Between October and December 2016, the Committee held six meetings where it heard from 17 witnesses representing a broad cross-section of Canadians with representatives from municipalities, industry groups, recreation associations, environmental protection organizations, the academic community and Indigenous groups all providing their insights on the issues considered in the study. In addition to hearing witnesses, the Committee received 256 written briefs, of which 142 were submitted by individuals, 70 by Indigenous groups and 44 by municipalities, associations and industry groups.

BACKGROUND AND CONTEXT

Historical Context for Navigation Protection

The public right to free and unobstructed passage on Canadian waterways is established under the common law and, in Quebec, under the civil law.[4] Navigation on Canadian waterways, however, remains within the exclusive jurisdiction of Parliament under the Constitution Act, 1867.[5]

Amendments to the Navigable Waters Protection Act: 2009

The Budget Implementation Act, 2009 (BIA 2009)[6] made the first substantial amendments to the Navigable Waters Protection Act (NWPA), as the Navigation Protection Act[7] was then known, in many decades.[8] At the time, it was the view of the federal government and some stakeholders that the delays and uncertainty created by the existing approval process discouraged public and private sector investments in works in and around navigable waters.[9]

Pursuant to the authority of the amended section 13 of the NWPA, the government was permitted to pre-approve works posing a low risk to navigation.[10] The Minor Works and Waters (Navigable Waters Protection Act) Order (Minor works order) came into force in June 2009. Under the Order, certain specified classes of works and waterways are exempted from the approval process; subject to the owners of the works constructing the works to predetermined specifications and standards. Examples of minor works for which no approval process is required include erosion-protection, docks, boathouses and boat ramps, aerial cables, submarine cables, pipelines buried under the bed of a navigable water, dredging and mooring systems.[11] Minor waters described in the Order include minor navigable waters, artificial irrigation channels and drainage ditches and small private lakes.

Additionally, the amendments adopted in 2009 eliminated the requirement that all named works require federal approval. Approval requirements apply only to proposed bridges, booms, dams and causeways that are determined to have a substantial impact on navigation.

Amendments to the Navigable Waters Protection Act: 2012

Further amendments to the NWPA were brought in 2012 through A second Act to implement certain provisions of the budget[12] (BIA 2012). These amendments came into force in 2014.[13] BIA 2012 changed the name of the NWPA to the Navigation Protection Act (NPA) in order to clarify that the intent of the legislation is to protect the public’s right to navigation, rather than specifically protecting waterways.[14] The legislation also limited the Act’s application to works affecting waterways listed in a new schedule to the Act (Schedule) or, upon the request of the project proponent, to works affecting an unlisted waterway.[15] The Schedule, which can be amended by regulation on request, originally included 162 waterways in Canada, that, according to Transport Canada, represent “navigable waters that support busy commercial or recreation-related navigation […] [,] are accessible by ports and marinas, and are often close to heavily populated areas.”[16]

The 2012 amendments to the NWPA expanded the authority of the Minister of Transport to designate any works as minor works and any waters as minor waters in order to permit additional projects considered to pose a low risk to commercial and recreational navigation to be pre-approved. Navigation Protection Program (NPP) officers within Transport Canada were also granted the authority to approve works that would pose no impact on the public’s right to navigation.[17] Figure 1, provided as an Appendix to this report, shows the key steps in the process for the approval of proposed works under the NPA.

It is important to note that the added prohibitions concerning the dewatering and depositing of materials into navigable waterways contained in the NPA are applicable to all navigable waterways rather than just scheduled waterways.[18]

The Canadian Environmental Assessment Act, 2012 (CEAA 2012),[19] which replaced the Canadian Environmental Assessment Act, does not incorporate the Law List Regulations that previously required all approvals for works under the NPP to undergo an environmental assessment. As such, CEAA 2012 requires a federal environmental assessment only for “designated projects” prescribed by regulation[20] or for projects that the Minister of the Environment designates by Order.[21]

STAKEHOLDERS’ ASSESSMENT OF THE NAVIGATION PROTECTION ACT

Scope of the Navigation Protection Act

Much of the testimony heard in the Committee’s study of the NPA centred on the scope of the legislation and its application to works over a limited number of waterways.[22] Where all navigable waterways were covered under the NWPA, only 164 (162 when the Act came into force) of the largest and busiest waterways and their tributaries listed in the Act’s schedule are covered under the NPA.[23] Maps illustrating the waterways covered under the schedule are included as an Appendix to this report.

Based on the testimony heard by the Committee, it appears that the provinces of Saskatchewan and Manitoba and the Yukon and Northwest territories,[24] municipalities and the construction industry generally favour an NPA that does not by default require environmental assessments and applies to specific waterways only. According to Mr. Michael Atkinson, President of the Canadian Construction Association, the adoption of an act with a narrower scope than the NWPA and the introduction of the Minor works order has improved project proponents’ ability to manage their projects by creating greater certainty as to when the approval of Transport Canada is required.[25] Mr. Raymond Orb, President of the Saskatchewan Association of Rural Municipalities, indicated to the Committee that with the reduction in the number of requests for project approvals sent to Transport Canada, delays in approvals have also been reduced, meaning that projects can be started on a timelier basis.[26] According to Mr. Al Kemmere, President of the Alberta Association of Municipal Districts and Counties, the NPA better “balances federal oversight with municipal autonomy” than did the NWPA.[27]

Groups representing recreational users expressed concerns about the NPA’s narrow scope, for example, Mr. Greg Farrant, spokesperson for the Ontario Federation of Anglers and Hunters (OFAH) told the Committee that the hunting, fishing, trapping and outfitting industries in Canada provide $15.2 billion annually to the national economy,[28] but that much of this money depends on ensuring access to Canada’s lakes, rivers and streams, most of which is on unscheduled waters.[29] The Wilderness Canoe Association, in a submission, suggested that even minor waters deserve protection under the Act because even minor waters can provide significant recreational value and once obstructed, there is little chance that they will again be navigable.[30]

The Council of Canadians, and many individuals who submitted briefs to the Committee, suggested that under the NPA, most waterways have lost the environmental protection that was built into the former NWPA. There was broad support expressed in these submissions for the repeal of the schedule and a reversion back to project approvals being required for all waterways.[31]

Based upon the witness testimony and written submissions received, the Committee recommends:

Recommendation 1

That the government maintain the Schedule but rapidly improve the process of adding waterways to the Schedule by making it easily accessible, easy to use and transparent and that a public awareness campaign be put in place to inform stakeholders of the process.

Additionally, it should be noted that the Council of Canadians, as well as 75 of the briefs submitted to the Committee, suggested that previous authorities to review the construction of interprovincial and international pipelines and electrical transmission lines over navigable waters that had been delegated to the National Energy Board should be returned to Transport Canada and the Canadian Environmental Assessment Agency.[32] In the interest of returning responsibility for these project approvals to Transport Canada, the Committee recommends:

Recommendation 2

That the government include Transport Canada in the decision-making process for environmental assessments of pipelines and electrical transmission lines that cross navigable waters.

Navigation and Indigenous groups

Indigenous groups that provided testimony to the Committee and those that submitted written briefs, all voiced concerns that they had not been properly consulted about changes to the NPA,[33] with many suggesting that without full, free and informed consent from Indigenous groups on changes to the NPA, that the Act may violate Indigenous historical treaty and water rights[34] and, as suggested to the Committee by Andrea Hoyt of the Nunatsiavut Government, their comprehensive land claims agreements.[35] Many Indigenous groups are concerned that their traditional waterways are no longer protected under the Act. They also suggested that it is unclear as to how these waterways could be considered for addition to the Act’s schedule,[36] particularly as it appears that the NPA excludes Indigenous governments from acting as local authorities that may request the addition of waterways to the schedule.[37]

Many Indigenous groups also find the narrow scope of the NPA problematic. Several First Nations indicated in their briefs that the NPA does not provide adequate consideration of the requirements of Indigenous peoples, as navigation by water represents a means of subsistence, commerce, transportation and connection to traditional cultural practices. As such, the effects of changes to the navigability of waterways, even changes to smaller waterways, can be significant. The Athabasca Chipewyan First Nation noted in its submission, the injuries sustained by its members on waterways as a result of lowered water levels, which they attributed to the removal of water by the oil and gas industry and the effects of climate change in northern Alberta.[38]

Concerns were also expressed about the changes to the NPA that appear to remove the requirement for proponents of works that may affect an Indigenous right to navigation, particularly on unscheduled waters, to consult Indigenous groups prior to the construction of these works. Without federal involvement through the NPP application process, some Indigenous groups submitted that it is difficult, if not impossible, for Indigenous groups to know about proposed works over waterways prior to the construction of the works.

Some Indigenous groups also suggested that under the language of some of the treaties concluded with the Crown, access to water and the right to unimpeded navigation on their traditional territories are protected. As such, according to them, these rights should have precluded the government from making some of the substantive changes that were included in the navigation protection regime without prior consultation and consent of Indigenous groups.[39]

Lastly, while the Athabasca Chipewyan First Nation, in its written submission, spoke of benefiting from NPP protections on some of its traditional waterways, it argued that the broad authority conferred to the Minister of Transport to make orders exempting certain classes of works from review short-circuits the legislative and consultative process, removing transparency and predictability in decision-making.[40] The Athabasca Chipewyan First Nation suggested that the removal of this authority, the holding of public consultations and the promulgation of regulations would resolve this conflict.[41]

Given the importance of navigation to Indigenous peoples across Canada, the Committee recommends:

Recommendation 3

That the government examine ways of preserving, protecting and respecting navigation on waterways on traditional aboriginal lands and recognize the special relationship that Indigenous communities have with waterways and impose a requirement that project proponents adequately inform stakeholders of a work before it commences so as to provide opportunities for appropriate consultations to be undertaken.

The “Aqueous Highway Test” and Adding Waterways to the Schedule

One of the complaints heard from industry associations, environmental organizations and Indigenous groups was the lack of clarity of definitions in both the former NWPA and the current NPA. Navigability under the NWPA and preceding legislation was determined by what has been called the “canoe test,” whereby if a canoe could be floated in a body of water, the waterway was considered navigable.[42] While this test appears simple and clear, it has remained a point of contention as to how manmade culverts, irrigation canals or temporary waterways that may exist for a few days or weeks in a year, but on which a canoe could be floated during that time, should be considered by the test. Provinces and territories, and their municipalities, often sought authorization to build works on navigable waters through the NPP proactively and would face delays stretching to two or more years.[43]

Under the amendments to the navigation legislation that took place in 2012, Transport Canada introduced the “aqueous highway test. A new focus was then placed on protecting navigation on systemically important waterways, through a determination as to whether a waterway had supported significant navigable traffic in the past, at present, or would be reasonably likely to do so in the future. Waterways where Transport Canada had evidence of such traffic were subsequently added to the schedule and fell under the jurisdiction of the NPP.[44] The original list of proposed waterways for the schedule included 1,070 waterways, which was later reduced to 240 waterways, before reaching the 162 waterways included in the schedule when the Act came into force.[45] Waterways not added to the schedule have maintained some protections, but in the event a dispute arose, affected parties on unscheduled waters would be required to intervene through the courts.[46]

Many of the witnesses heard by the Committee discussed the need to establish a balance between the “canoe test” and the “aqueous highway test,”[47] particularly as these stakeholders suggested that the aqueous highway test fails to appreciate the recreational value of smaller waterways. The Ontario Federation of Anglers and Hunters, and the Council of Canadians in passing, spoke in favour of adding an additional 40 waterways identified by Mountain Equipment Co-op to the schedule, while also stressing that additional input into how additional waterways could be added to the schedule would be helpful.[48]

The Committee recognises the need for clearer language in the NPA with respect to the aqueous highway test and therefore recommends:

Recommendation 4

That the government, in consultation with Indigenous communities, provinces, territories and other relevant stakeholders such as landowners, user groups and municipalities, more clearly articulate the criteria for the aqueous highway test.

Another area that witnesses pointed to as a common source of confusion concerns the process for adding waterways to the schedule. In the three years that the NPA changes have been in effect, two waterways have been added to the schedule, although anecdotal evidence[49] suggests that a large number of parties have exhibited an interest in having other bodies of water added to the schedule. There are currently two private members’ bills before the House of Commons seeking to add lakes and rivers to the schedule. Eight other private members’ bills introduced in the 2^nd session of the 41^st Parliament that sought to add other waterways to the schedule died on the Order Paper following the dissolution of Parliament.[50]

Emma Lui, a Water Campaigner with the Council of Canadians, indicated that she is uncertain as to how to request that a body of water be added to the schedule.[51] Section 29 of the Act indicates that a navigable waters can be added to the Schedule by regulatory amendment, where the Governor in Council is satisfied that the addition:

• a) Is in the national or regional economic interest
• b) Is in the public interest; or
• c) Was requested by a local authority

This appears to have created an impression among some witnesses that the only way a waterway can be added to the schedule is by a the request to “local authorities” (defined as “the government of a municipality, any other government constituted under the laws of a province or a department of a provincial government”[52]). In fact, there appears to be nothing preventing any group or individual from requesting a waterway be added on the basis of (a) and/or (b) of the above-listed criteria.

In their brief, the Federation of Canadian Municipalities recommended a balanced approach to navigation protection, with a greater role for municipalities in extending the NPP to additional waterways and moving enforcement to local authorities.[53]

In light of a lack of clarity as to the NPP’s procedure for adding waterways to its schedule, the Committee recommends:

Recommendation 5

That the government update the Schedule in consultation with Indigenous communities, provinces, territories and other relevant stakeholders to determine which waterways should be included in the Schedule and that the addition of waterways be accompanied by increased resources to deal with applications.

Recommendation 6

That the government provide Indigenous communities, provinces, territories and other relevant stakeholders with clarification about who can ask for a waterway to be added to the List of Scheduled Navigable Waters and on what grounds.

Recommendation 7

That the government require that Transport Canada provide reasons why a waterway is or is not added to the schedule.

Regulatory Certainty and Transparency in Decision-Making

As noted above, many witnesses found the lack of timeliness and consistency of decision-making from the NPP troubling, as it caused increased costs for projects, while decreasing confidence in the federal government to properly regulate navigation. Industry groups advocated the need for regulatory certainty and approval processes that better match the administrative burden with the size and risk of projects. Mr. Chris Bloomer, President of the Canadian Energy Pipeline Association, testified that an “effective and efficient regulatory framework for all stakeholders […] should be science and fact based, be conducted by the best-placed regulator, avoid duplication, outline clear accountabilities, contain transparent rules and processes, [and] allow for meaningful participation of those who have valuable contributions to make”.[54]

Mr. David Marshall from the Fraser Basin Council provided insights into what types of activities should be considered when determining navigability and the importance of bringing interested groups together early when seeking to plan for the future management of a waterway.[55]

The spokesperson from the Métis National Council, Mr. Kyle Vermette, reiterated this point of view in advocating for “ensuring that whoever is responsible for that decision‑making [in navigation protection and environmental assessment] is competent, experienced, transparent, and is viewed as capable”.[56]

The Council of B.C. Yacht Clubs, in their written submissions, mirrored this position in identifying that the NPA placed no positive obligation on the Minister of Transport to inform the public of its decisions concerning proposed works over navigable waters. Additionally, the authority to exempt minor works through ministerial orders, rather than by regulation circumvents parliamentary review and oversight.[57] Accordingly, the Committee recommends:

Recommendation 8

That the government impose a requirement that project proponents adequately inform stakeholders of a work before it commences so as to provide opportunities for appropriate consultations to be undertaken.

Dispute Resolution Concerning Waterways Not Subject to the Navigation Protection Act

As mentioned above, one of the notable changes to the NPA, in moving to focus on the protection of scheduled waters, was the decision to defer complaints on the common law right to navigation on unscheduled waterways to the courts.[58] As identified by the West Coast Environmental Law Association, not only is court action “exceptionally expensive” in seeking to remove an obstruction, it also remains unclear whether an individual could sue on behalf of the public.[59]

Mr. Marshall from the Fraser Basin Council, in his testimony before the Committee, pointed out the value of bringing people together early to resolve disputes, before court intervention is necessary, and how that approach has proven to be important in the management of the Fraser Basin in British Columbia. Through ongoing discussions with Indigenous groups, the shipping industry, local government and environmental organizations, the Fraser Basin Council has acted as a catalyst for the collaborative management of resources on the waterway and avoided the need for lengthy court challenges.[60]

The West Coast Environmental Law Association also discussed how important it is in the case of a dispute that involves the public’s right to navigation that the process for members of the public be fair, whether it concerns a large waterway on the schedule, but especially for smaller waterways.[61] It was argued to be unfair that the protection of the right to navigate Canada’s major waterways, where advocates for shipping companies, recreational users and the public are already heard, should have access to government resources through the NPP, where smaller waterways would not. While the number of affected parties on smaller waterways may be less, the likelihood that obstructions on these smaller waterways would permanently obstruct navigation are no doubt greater.

In order to provide an administrative solution to navigation disputes the Committee recommends:

Recommendation 9

That the government create an efficient administrative complaint mechanism, within Transport Canada, to assist the public with the resolution of possible impediments to navigation on all of the country’s inland waterways, including those not listed in the Schedule, so that clear provisions are in place for communities and other relevant stakeholder to be able to oppose projects they consider threatening the waterways.

Recommendation 10

That the government consider the restoration of the ability of officers of Transport Canada’s Navigation Protection Program to accept and address public complaints regarding the right to navigation as part of a larger and more comprehensive complaint resolution process.

CONSULTATIONS BEFORE AMENDING THE NAVIGATION PROTECTION ACT

The majority of the recommendations proposed by the Council of Canadians and by many of the individuals who submitted written briefs concerned holding additional consultations in order to strengthen the protections found in the NPA and other legislation that protects waterways, to properly consult with Indigenous communities and to foster a sense of collaboration with the public, Indigenous groups, industry, government and regulatory agencies.[62] To many concerned parties, the changes made to navigation protection legislation in 2009 and 2012 were completed without adequately addressing the concerns of the public at large, as well as many of the stakeholder groups.[63]

As discussed earlier in the report, many Indigenous groups also felt that they had not been fully consulted prior to the changes to navigation protection legislation being adopted. Given many Indigenous groups’ reliance on navigation for transportation, commerce and subsistence, changes to the NPA would disproportionately affect Indigenous people.

In order to ensure that any changes to the NPA do not negatively affect stakeholders, taking into account their perspective, the Committee recommends:

Recommendation 11

That the government ensure that the interests and concerns of stakeholders such as farmers and municipalities are considered when any changes to the NPA are enacted.

CONCLUSION

During its study of navigation protection legislation, one of the overarching themes that the Committee heard was the value of the shared cultural heritage of traversing Canada’s oceans, lakes, rivers and streams. Although the goals of industry, government, Indigenous groups, conservation associations and other stakeholders may diverge as to how development surrounding Canada’s waterways takes place, representatives of these groups told the Committee of the need for clarity, transparency and expedience in processes that protect navigation and in dispute resolution. The maintenance of an ongoing dialogue among the various stakeholders remains paramount to ensuring that future iterations of the Navigation Protection Act are responsive to the needs of Canadians from sea to sea to sea.