• A Bridge Over Deregulated Waters: The New Navigation Protection Act
  • November 28, 2014 | Authors: Jordanna Cytrynbaum; Miriam Isman
  • Law Firm: McCarthy Tétrault LLP - Vancouver Office
  • On April 1, 2014, the Federal Navigation Protection Act, R.S.C. 1985, c. N-22 (the “New Act”) came into force, replacing the Navigable Waters Protection Act (the “Old Act”) and making notable changes to Canada’s regulation of waterways. The legislative objective is to enable municipal authorities to manage local projects, like bridge construction, without the costs and delays often incurred in the course of the Federal approval process. These amendments are likely to have implications across various industries, including construction, oil and gas, transportation, and telecommunication.

    Highlights of the amendments include the following:

    1. The New Act narrows the scope of regulation by reiterating that the object of the legislation is the prevention of activities that interfere with navigability, not necessarily those that engage broader environmental concerns. This is significant as the Old Act was often used as de facto environmental legislation.
    2. The New Act exempts the vast majority of Canadian waterways (approximately 98%) from the Federal regime. Under the New Act, only those bodies of water enumerated in the statute’s “List of Scheduled Waters” continue to fall within Transport Canada’s regulatory oversight. The public’s right to unobstructed passage over the remainder of Canada’s waterways is currently regulated by common law navigability protections.
    3. The New Act exempts several classes of development from the requirement of providing notice to the Minister of Transport. Projects classified as “minor works” under the New Act can be undertaken without government approval, even in a scheduled waterway. Currently, the list of minor works includes docks, boathouses, boat launches, pipelines running below the bed of the waterway, and cabling for both telecommunication and power.

    Individuals and counsel who work in affected industries, particularly those previously impacted by the Old Act, will want to familiarize themselves with the common law related to navigation rights. They may also want to review and take advantage of the New Act‘s opt-in provisions, which enable proponents to have their projects governed by statutes as though they were constructed on a scheduled waterway.