Environmental laws get a tweak with Bill C-69: navigable waters in need of a full fix

There are a few important items that you may have missed in last weeks 341 page environmental omnibus Bill C-69. To date, the majority of the public coverage on the Bill has been around environmental assessment and energy regulation. But anyone who is a recreational water enthusiast or concerned about environmental flows, has an interest in the third part of the act that amends navigation protection (which protects waterways from obstructions). Here we’ve broken down some of the big changes.

Tip for readers: Our analysis of this Bill and all its implications is ongoing and we will post our analysis as well as key asks in the weeks and months ahead as we track this Bill in Ottawa through the House of Commons. For a snapshot, check out the TL;DR (too long; didn’t read).

Why amendments must go beyond restoring what was lost

The 2012 amendments to the Navigable Waters Protections Act (NWPA) stripped protections from 99% of waters by eliminating environmental assessment requirements and narrowing federal government oversight to an exclusive list or Schedule under the Navigation Protection Act (NPA). This meant that approvals for projects on scheduled waters would not trigger a look at environmental impacts. By reducing federal oversight to a short-list of waters on the schedule the vast majority of our lakes and rivers lost regulatory protection. For the majority of waters, the public right to navigation was left to the public to defend in court.

A look at proposed amendments

1. New definition for navigable waters

The proposed Canadian Navigable Waters Act (CNWA) adds clarity to decision making with a definition for navigable waters. Though the definition (pictured below) extend protections beyond the schedule to provide federal oversight for large developments on publicly accessible waterways, it is narrower than the canoe test. 

Prior to the 2012 changes to the Navigable Waters Protection Act, any body of water in Canada that could float a canoe, i.e. the common law “canoe test”, was protected by the requirement to obtain federal approval for projects or “works” that would obstruct navigation. The proposed law broadens protections to all navigable waters, and while not restoring all the protections that were lost, it seeks a middle ground that ties protections to the types of projects impacting navigable waters.


We are pleased to see the return of a definition that is broader in scope than the Schedule (ie. list of waters) alone, inclusive of recreational waterways, and recognizing indigenous uses of waterways. We remain concerned that the definition could be narrowly prescribed carrying the risk that waters would still be left behind.


2. Approvals for Works - Major works require approval on ALL navigable water

The proposed Act would require the Minister of Transportation to approve obstructions caused by major works on all navigable waters (these projects have yet to be defined but are described as dams and bridges). In addition to broadening the geographic scale of approvals, proponents must now provide information and notice of the works before construction. The public would be given 30 days to comment.

The approvals process requires the Minister to consider a set of factors before approving an obstruction on navigable waters. However, as far as we can tell, environmental impacts and scientific reasoning do not weigh on the Minister’s discretion to approve a work. The federal government is expected to release new regulations for physical activities (i.e. Project List) that would require an assessment under the proposed Impact Assessment Act of Bill C-69. If major works under the Navigable Waters Act are part of this Project List, then it would mean that projects with significant impact to navigable waters would require an impact assessment. At present, it is not clear whether these two “major project lists” are synonymous across the two Acts and there is no current requirement in the proposed CNWA for the Minister to consider the findings of an impact assessment before issuing an approval. In either case, scientific information (including an assessment of magnitude, geographic extent, duration, reversibility) could be more explicitly considered in the decision-making process. Consideration of scientific factors would make sure that decisions approving interference with navigation are made in the consideration of the full spectrum of positive and negative social, health, environmental and economic effects.


We are pleased to see that major works require approval on all navigable waters. We remain concerned that this review does not trigger a comprehensive impact assessment prior to project approval.


3. The “Schedule of Waters” remains to regulate a new class of works

One of the most controversial of changes made in 2012 was the narrowing of federal oversight for navigable waters to an exclusive list of 164 waters protected under the Act. Though proposed amendments are intended to allow the Minister to regulate obstructions on all navigable waters, the schedule was kept to narrow required approvals for a new class of what we will call “Medium” works. Minor works are exempt from permits but are subject to other requirements. No additions to the Schedule were included in the amendments but a process for adding waters to the Schedule was proposed. Consultation is expected and the final decision will rest with the Minister.  


The Schedule will remain to provide extra oversight in the form of approvals for a new class of “medium” works that stand to obstruct navigation on scheduled waters. This is in addition to required approvals for major works on all navigable waters. How minor works will be tracked and regulated remains a question. A tiered system of protections remains. Protecting all navigable waters will come down to legislative and regulatory details.


4. Improved public notification and engagement

Amendments to the Act include provisions around public notification, dispute resolution and the establishment of a public registry. Notification is to be made before a major or “medium” project starts and interested persons have 30-days to submit comments to the Minister.  A new conflict resolution mechanisms exists in place of approvals for “medium” work in navigable waters not listed in the Schedule. The community and proponents would have 45-days to mediate interests and if no resolution is found they can ask the Minister of Transportation to decide on the need for an approval.

For all projects regulated under the Act, we would like to see a process that would require public notification, an opportunity for input and a process for which that input can be submitted. This allows the public and engaged groups to contribute information that would inform the Minister’s decision on a project while not placing an excessive burden on the public to directly contest a proponent. For “medium” works taking place on navigable waters that are not scheduled, a concerned person would need to file an ‘objection’ and be willing and able to argue with the proponent for 45-days before going back to the Minister.

The Minister is required to create an online registry to share information on approvals. It is unclear, what information would be posted given Ministerial discretion on this. We would like to see specific information included: project info, geographic location, proponent, link to Impact Assessment, the decision outcome, as well as key factors that determined the decision. Finally, we believe that all works should be posted in this registry. Understanding the cumulative impact of projects, including the number of minor works taking place on water bodies, is a critical component of science-based decision making. If we do not track minor works, then we have no way of testing whether the cumulative impact of each structure or dump really is “minor”.


While advance notice is a proactive measure that improves upon the NPA by reducing the burden on communities to defend their navigation rights in court, it is less robust than the previous NWPA approvals process that triggered an environmental assessment for works on all navigable waters.


5. Other Changes

In addition to the proposed amendments mentioned above, a welcome change is the increased enforcement powers and greater penalties for violations and offences that would ensure better compliance with the Act.


What' Next?

We must remain firm in defending positive aspects of the Canadian Navigable Waters Act (CNWA) while ensuring that protections from the previous Navigable Waters Protection Act (NWPA) are restored and modernized.

We will continue to monitor the debate and amendments to ensure that protections are truly restored for all navigable waters.


How you can help

Let the federal government know that you want to see environmental impacts considered as part of project approvals for major works on navigable waters. This is our chance to restore the link between the environment and navigable waters. The recently released Consultation Paper On Approach to Revising The Project List is currently accepting submissions and public comments. Have your say on how the Project List should be revised before federal environmental oversight is streamlined.

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