Charting Progress on the Public Right to Navigate in Canada: The 2024 Canadian Navigable Waters Act Legislative Review Report and Recommendations

The Canadian Navigable Waters Act (CNWA) came into effect on August 28, 2019, to protect the public's right to navigate from human-made physical impediments on Canada's waters. As required by law, a review of the Act was conducted to assess its effectiveness and identify areas for improvement. The review included input from Indigenous communities, stakeholders, government agencies, and the public. Key recommendations focus on improving clarity in the legislation, enhancing enforcement tools, strengthening collaboration, and streamlining approval processes.

Message from the Minister of Transport Canada

The objective of the Canadian Navigable Waters Act (CNWA) is to protect the public’s right to navigate on all navigable waters in Canada. It is my pleasure to table the CNWA Legislative Review Report to Parliament, which outlines recommendations on how to improve the administration and the implementation of the Act.

This review underscores the need to reduce the administrative burden on proponents applying for approvals or exemptions under the CNWA. Transport Canada will work towards providing greater clarity on the requirements of the Act, as well as standardizing the administration of approvals and assessments across the provinces and territories. All Canadians should receive the same standard of service, no matter where they are in our country.

The review also found that increased cooperation between federal departments would help to reduce unnecessary duplication, delays, and complexities for proponents. Transport Canada will prioritize these improvements to the administration of the Act as we strive to provide responsible and fair management of the public’s right to navigate.

Finally, the need for greater collaboration with local communities, Indigenous Peoples, and the provinces and territories in the administration of the CNWA is highlighted throughout this review. In consulting with these groups and others, Transport Canada will have a greater understanding of local issues related to navigation and will be better able to serve all Canadians.

The review has been made possible through the diligent efforts and commitment of all the participants involved. I want to express my gratitude to those who dedicated their time to meet with Transport Canada’s legislative review team, to share their perspectives, submit their inputs, and engage in discussions through various platforms such as the discussion paper, engagement sessions, and questionnaire. Your input regarding the enhancement of Canada’s navigation protection regime has been instrumental in guiding Transport Canada to strengthen the CNWA implementation.

I wish to make a special acknowledgment to Indigenous Peoples who made the journey to join consultation sessions nationwide, taking valuable time from their busy schedules to contribute to this review. Indigenous Peoples of Canada have been stewards of the land and water for time immemorial and their knowledge, insights and practical suggestions were incredibly valuable and significantly influenced our findings and recommendations.

Executive summary

The CNWA came into force on August 28, 2019. It represents a significant piece of legislation that ensures the public right to navigation on Canada’s navigable waters. As mandated by the Act, a legislative review of the provisions and operations of the Act must be conducted by the Minister before the end of the fifth year after the day on which the Act came into force.

The legislative review process was designed to be inclusive, engaging with participants ranging from federal and provincial authorities to municipalities, Indigenous communities and organizations, members of industry, not-for-profit groups and the public. The aim was to gather a diverse range of perspectives, ensuring that any amendments or modifications proposed were well-informed and reflective of the collective interests of all Canadians. The review team, led by the Minister of Transport (the Minister), was tasked with developing recommendations that identify opportunities for improvement.

The review focused on recent changes to the legislation, the effectiveness of the Act in safeguarding the rights of Indigenous Peoples, and the adequacy of the processes for the assessment of works on navigable waters. The review examined the scope of the Act, its implementation, and its objective; to strike a balance between protecting the public right of navigation and the need to place works in navigable waters. As a result of the review team’s engagement with Indigenous Peoples, stakeholders and the public, recommendations at the legislative, regulatory, and operational levels were identified. The recommendations include:

creating the ability to exclude specific works from the definition of a “work”;
providing more flexibility for works that would not interfere or would slightly interfere with navigation;
reviewing whether geographical areas that are important to navigation should have greater oversight;
introducing a new enforcement tool, contributing to a more graduated approach to enforcement;
improving how Transport Canada engages or collaborates with Indigenous Peoples, stakeholders, proponents, other federal departments and entities, and provincial counterparts;
strengthening internal policies, procedures, and training for Navigation Protection Program Officers;
enhancing external guidance and websites;
establishing service targets for approval of works; and
working more closely with stakeholders, proponents and other government entities to increase awareness of the Orders in Council process for exemptions.

The recommendations are outlined throughout the report and summarized in Annex A.

The review was not only a legal requirement but also an opportunity to refine the CNWA and its administration to better serve its intended purpose by building upon the strengths while identifying and addressing gaps and issues. The recommendations seek to ensure that the Act remains a robust and dynamic framework capable of protecting the public right to navigation for years to come.

Section A: Introduction

Review requirement

In 2019, the Navigation Protection Act (NPA) was amended and renamed the CNWA. The goal of the CNWA is to protect the public’s right to navigate on all navigable waters in Canada by regulating interferences to navigation including works (structures, devices, or things), obstructions, and prohibited activities (such as dewatering).

Under section 47 of the CNWA, the Minister is mandated to conduct a legislative review of the Act before the end of the fifth year after its coming into force and table the report of the review before Parliament within 15 sitting days of its completion.

Scope

The goal of this legislative review was to find out where the Act is working well, where it needs to be improved, and if it is working as intended. To achieve this objective, all elements of the Act were examined, including the legislative provisions, its implementation (operational policies, procedures, guidance, etc.), regulations, and orders under the Act. As such, the review team engaged with Indigenous Peoples, other government departments, Provinces, municipalities, industry/private sector, the public, proponents and other stakeholders to ask them where improvements are needed.

The review process

The legislative review was held between October 2023 and August 2024, and undertaken in three phases. The three phases included: pre-engagement, engagement, and post-engagement.

The first phase, from October 2023 to January 2024, included pre-engagement activities. The review team developed engagement plans, conducted research, and gathered information. Meetings were held with key stakeholders, proponents and partners, including National Indigenous Organizations and senior managers formerly involved with the Act. Draft engagement plans were formulated, and discussions were initiated with a Regional Committee comprised of Navigation Protection Program Officers and managers from the Navigation Protection Program’s regional offices across the country.

In the second phase, from January to April 2024, the review team engaged with a range of partners, Indigenous communities, proponents and stakeholders, including, federal and provincial government departments, municipal associations, industry representatives and recreational organizations. A discussion paper was open for feedback on Transport Canada’s Website for 60 days. This paper guided discussions and sought feedback on key aspects of the CNWA, such as the intention of the Act, and Indigenous Peoples’ rights and knowledge. In addition, a virtual questionnaire was posted online for 30 days to gather feedback from stakeholders and proponents across various sectors and regions. Finally, written submissions were received by email and by mail.

The final phase, from May to July 2024, focused on post-engagement activities such as analyzing the feedback gathered during phase two, developing the recommendations, and writing the final report.

Engagement with Indigenous Peoples

Engagement with Indigenous Peoples and communities on the CNWA legislative review was guided by principles consistent with the Government of Canada’s reconciliation efforts and the United Nations Declaration on the Rights of Indigenous Peoples Act. Ten virtual meetings with five National Indigenous Organizations and Inuit Treaty Organizations were held. Transport Canada used a distinction-based approach^{Footnote 1}, working independently with First Nations, Inuit, and Métis. This included tailoring our discussions to the unique priorities and interests of First Nations, Inuit, and Métis. The discussion paper and engagement plans were shared with National Indigenous Organizations in advance of being finalized. Modifications were made based on their feedback concerning the language used and the proposed approach to engaging with Indigenous Peoples.

Transport Canada representatives also hosted virtual meetings, and scheduled in-person engagement sessions with Indigenous Peoples were in every region across Canada including Vancouver, Halifax, Yellowknife, Winnipeg, Montreal, and Ottawa. In total, the legislative review team held 23 engagement sessions with First Nations, Inuit, or Métis. Overall, the review team engaged 45 different Indigenous communities and organizations representing First Nations, Inuit, or Métis (not including National Indigenous Organizations). These meetings fostered awareness about the Act and enabled a two-way dialogue to discuss how the CNWA could better reflect the needs and experiences of Indigenous Peoples.

Engagement with internal partners and external proponents and stakeholders

Transport Canada conducted a series of virtual outreach and engagement sessions with proponents and stakeholders who expressed an interest in sharing their views. This included industry representatives (from the mining, energy, and aquaculture sectors), other federal departments and entities (Environment and Climate Change Canada, Department of Fisheries and Oceans Canada, Natural Resources Canada, Canada Energy Regulator, and Department of National Defence), provincial ministries, municipal associations, and not-for-profit groups representing recreational waterway users. In total, Transport Canada held eight engagement sessions with industry, two with not-for-profit organizations, 15 with federal departments and entities, and six with provincial/territorial/municipal representatives.

To support internal engagement, a Regional Committee consisting of Transport Canada Navigation Protection Program representatives across the country was established. The Regional Committee played a critical role in the review process by providing guidance and feedback on the scope of the review and researching key areas.

Overall engagement

In total, seventy-five engagement sessions were held, and 34 written submissions were received from partners, stakeholders, proponents and Indigenous communities. In total, 89 distinct groups and communities participated in at least one engagement activity (aside from the questionnaire in which all 155 responses were anonymous). A full summary of the participation is provided in Annex B.

Section B: Background and context

Historical background

Throughout Canadian history, navigable waters have played a critical role in the country’s development and cultural identity.

Historically, navigable waters were essential for the fur trade, which was one of the earliest drivers of the Canadian economy, and they continue to play a crucial role in accessing international markets. Socially and recreationally, Canada’s navigable waters have been central to community events, providing space for activities like fishing, boating, and swimming. Culturally, navigable waters hold great significance for Indigenous Peoples, who have inhabited these lands for thousands of years. Today, navigable waters continue to be a cornerstone in the daily lives of Canadians. As one of the oldest acts in Canada, the CNWA has a deep history that reflects an evolving approach to managing the country’s navigable waters. The Act has undergone several revisions and updates since its inception, reflecting changing priorities and challenges in marine navigation oversight. Since 1882, the use of navigable waters has shifted away from purely economic or livelihood modes of transport and included recreational and sport activities. In 1906, the Navigable Waters Protection Act came into force and applied to the construction of a variety of structures including bridges, booms, dams, causeways, wharves, docks, and piers.

The Budget Implementation Act, 2009 brought major changes to the Navigable Waters Protection Act to address concerns regarding delays and uncertainty deterring investments. The Act was changed to be less restrictive and to simplify the approval process for works on navigable waters that have a minor impact on navigation. As a result, the Minor Works and Waters Order was created to exempt certain types of works (e.g., erosion protection structures, docks, boathouses, aerial and submarine cables) and smaller navigable waters from the approval process if the owners follow specific construction standards and specifications.

In 2012, the Navigable Waters Protection Act was renamed to the Navigation Protection Act, to focus on the public's right to navigate rather than the protection of navigable waters. The Navigation Protection Act used a list of waterways (known as the “Schedule” ^{Footnote 2}) to identify navigable waters where project proponents must apply to Transport Canada for approval. Additional changes were made to reduce and streamline approvals for low risk works on unscheduled navigable waters to focus on projects with greater potential impacts on navigation.

The coming into force of the Navigation Protection Act resulted in a reduction in federal oversight over navigation, shifting more responsibility to provinces, territories, proponents and stakeholders. The amendments resulted in a federal regulatory environment where major projects continued to be subjected to stringent oversight, but smaller projects on unscheduled navigable waters faced fewer regulatory hurdles.

Canadian Navigable Waters Act

In 2019, further amendments were made to restore lost protections and ensure greater oversight for navigation in all navigable waters in Canada. The Navigation Protection Act was renamed to the Canadian Navigable Waters Act. Amendments introduced changes to increase the protection of navigation on all navigable waters, and included new requirements for major works, expanding requirements for minor works, new public notification, and resolution processes, and extending authorities to address obstructions. The amendments also supported a strengthened relationship with Indigenous Peoples based on the recognition of rights, respect, cooperation, and partnership.

Since coming into force in August 2019, the CNWA’s regulatory framework has been expanded with the aim of balancing the construction of works with the protection of navigation. The Minor Works Order came into force in 2021 and replaced the Minor Works and Waters Order. This Order simplified the process for certain types of works that only slightly interfere with navigation. In addition, the Major Works Order was created to oversee potential substantial interferences to navigation on all navigable waters, not just those listed on the schedule.

Administration of the Canadian Navigable Waters Act

The Navigation Protection Program at Transport Canada is responsible for the administration and enforcement of the CNWA. Under the Act, the Navigation Protection Program is responsible for approving and setting terms and conditions for works in navigable waters. Annually, the Navigation Protection Program approves between 500 to 600 works^{Footnote 3}.

The Program assesses requests for exemptions related to prohibited activities, assesses requests to add navigable waters to the schedule of the CNWA, manages obstructions, and enforces the Act. Since 2019, the Navigation Protection Program received 113 applications for exemptions relating to prohibited activities and 39 applications requesting the addition of a navigable water to the Schedule. The Program also opened 386 files related to obstructions that impede navigation. The process for adding a navigable water to the Schedule was finalized in 2023, which explains the smaller number of applications.

Overall, Canada enjoys a vast network of navigable waters. Growing awareness of the Act since its coming into force has resulted in more inquiries, approvals and requests from Canadians, proponents, stakeholders and Indigenous Peoples.

Section C: Key findings and recommendations

Legislative recommendation

The following includes one recommendation that would require an amendment to the CNWA. The proposed recommendation aims to allow the Navigation Protection Program to focus its efforts on works that have greater impacts on navigation.

Recommendation 1: Exclude specific works from the definition of a work

Add the authority to create regulations to exclude certain “structures, devices or things” from the CNWA’s definition of a work

Issue

The Navigation Protection Program is responsible for anything that meets the definition of a work under the CNWA.^{Footnote 4} This could include structures, devices or things that may be regulated by other federal departments or where an additional review may not be beneficial to protect the public right to navigate. Approval requirements for these works impact program resources due to their significant volume.

Analysis

Currently, the Navigation Protection Program can create regulations to exclude structures, devices, or things from the definition of obstructions^{Footnote 5}, and to exclude bodies of water that are ‘too small’ from the definition of navigable water. However, the Governor in Council does not currently have the authority under the Act to exclude structures, devices, or things from the definition of a ‘work’. Therefore, owners of any object that meets the definition of a “work” under the CNWA must go through one of the processes established in the legislation before they can proceed. Examples of structures, devices or things that could be excluded from the definition of a work include:

Aids to navigation buoys;
Fishing gear; and
Geotechnical testing.

See Annex D for additional information and examples.

Without the authority to exclude identified structures, devices, or things, the Program is legally responsible for anything that meets the definition of a work that is constructed or placed in a navigable water. In some cases, certain work types have negligible impacts to navigation. As well, some work types, such as aids to navigation buoys, may not be practical to regulate because of their high volume. Some of these objects are also managed by other acts and regulations or other federal departments.

The ability to make regulations under the Act to exclude structures, devices, or things from the definition of a work would increase efficiency and avoid potential duplication of oversight between government entities. This approach would also clarify the legal responsibility amongst different jurisdictions to sufficiently regulate or manage the works.

Proposed Action and Expected Outcomes^{Footnote 6}

It is recommended that the CNWA be amended to allow the Governor in Council to exclude certain structures, devices, or things from the definition of a work.

Adoption of this recommendation enables a more effective allocation of Navigation Protection Program resources, by adopting a risk based approach that allows the Program to focus on works that have more significant impacts to navigation. Moreover, the Program would avoid duplication with other acts and regulations.

Regulatory Recommendations

The following section includes recommendations that would require an amendment to existing regulations, or a new regulation. These recommendations aim to create additional flexibility and reduce the administrative burden for proponents and the Navigation Protection Program, while upholding navigation protection. The proposed changes would provide more flexibility for works that either would not interfere or would only slightly interfere with navigation. They would also require the Program to review whether oversight should be increased in geographical zones that are important to navigation. Finally, the proposed changes would introduce administrative monetary penalties as a new enforcement tool to encourage compliance with the Act and its regulations.

Explore whether the Minor Works Order could:

Include more types of works that are likely to slightly interfere with navigation; and
Be limited to exclude its application in certain geographical zones that are important to navigation.

Issue

Not all works that slightly interfere with navigation are necessarily included in the Minor Works Order, which can result in unnecessary administrative burden for proponents and the Navigation Protection Program.

Also, the Minor Works Order may not offer sufficient oversight in certain geographical zones that are important for navigation, such as ports.

Analysis

The Minor Works Order designates works that are likely to slightly interfere with navigation, such as boathouses and boat-launching ramps. Proponents can proceed with the construction or placement of proposed minor works in all navigable waters without obtaining Transport Canada’s approval or going through other review processes such as the public resolution process^{Footnote 7} established under the Act.

Expanding the Minor Works Order

When the Order came into force in 2021, the Navigation Protection Program aimed to introduce flexibility by offering outcome-based requirements^{Footnote 8} where appropriate, rather than relying solely on prescriptive requirements. By revisiting the Minor Works Order, additional works with minor impacts on navigation could potentially be included, reducing administrative burden on proponents, and allowing the Navigation Protection Program’s resources to instead be focused on works that affect navigation more significantly. Examples of works that could be considered in the review of the Minor Works Orderinclude remediation dredging and backfilling, as well as works that tend to be assigned broad and generic approval conditions when approved by Transport Canada.

Expanding oversight in certain geographical areas

Currently, the CNWA considers geographical importance for navigation in certain areas regulating works. For example, under the Minor Works Order, aerial cables must undergo a different process if they cross Canadian heritage rivers, rivers, harbors, or historic canals as defined by the Historic Canals Regulations.

Works built by or for Canadian Port Authorities identified in Schedule 2 of the Port Authorities Operations Regulations are exempt from the application of the CNWA within their area of jurisdiction. However, works built by proponents or for an owner that is not an identified Canadian Port Authority are subject to the requirements of the CNWA.Areas of specific jurisdiction are often established by port authorities to promote safe and efficient navigation or environmental protection in the port's waters.

Given that works built by proponents outside of the port’s jurisdiction may impact navigation in the port, the Navigation Protection Program could explore identifying and imposing more stringent requirements in these geographical areas. This could be achieved by potentially identifying new conditions for existing minor works within these specific zones. This approach would align with the Act’s intention to consider geographical locations that are significant to navigation as an important factor in protecting the public right to navigate. Additionally, it would promote coordination between the Navigation Protection Program and other governmental entities.

Proposed Actions and Expected Outcomes

It is recommended that the Navigation Protection Program conduct an analysis of the Minor Works Order to explore:

adding more work types to lessen the burden on proponents and the Navigation Protection Program for small, low risk projects; and
adopting more stringent conditions for specific geographic areas important to navigation.

Adoption of the proposed action to add more work types to the Minor Works Order is expected to reduce the administrative and compliance burden for proponents. The Navigation Protection Program workload could also be reduced, allowing the Program to focus on works that have more significant impacts on navigation.

Adoption of more stringent conditions in geographical zones that are important to navigation would support improved oversight and protection for navigation.

Explore updates to the Navigable Waters Works Regulations to:

set specific criteria for identifying works that would not interfere with navigation; and
limit the application of the process for works that would not interfere with navigation in certain geographical zones where navigation is important.

Issue

There is need for greater clarity and criteria to define works that would not interfere with navigation and assess whether a work may interfere with navigation.

Also, the process for works that would not interfere with navigationmay not offer sufficient oversight in certain geographical zones that are important for navigation, such as ports.

Analysis

The process for works (other than minor works) that would not interfere with navigation is defined in the Act^{Footnote 9} and guidance on determining the level of interference to navigation of a work is available through the Navigation Protection Program’s External Submission Website.

Setting specific criteria

The Act allows the Governor in Council to make regulations regarding the construction, placement, alteration, rebuilding, removal, decommissioning, repair, maintenance, operation, use or safety of works in, on, over, under, through or across any navigable waters. The Navigation Protection Program could benefit from exploring updates to the Navigable Waters Works Regulations to establish criteria that must be met for works to be considered as having no impact on navigation.

By setting these criteria through regulation, the Program could provide greater consistency and predictability, allowing proponents to design and plan works in such a way that they would not interfere with navigation. Clearer criteria would also assist Navigation Protection Officers in enforcing the Act more consistently.

Expanding oversight in certain geographical areas

As noted in Recommendation 2, the CNWA currently considers geographical importance for navigation in certain areas when regulating works. However, the process for works that would not interfere with navigation^{Footnote 10} applies to all navigable waters regardless of their geographical location.

To protect safe navigation in specific geographical areas important to navigation, the Navigation Protection Program should impose more stringent requirements. This could be achieved by identifying through regulation additional geographic zones important to navigation where works being constructed or placed would be deemed as having the potential to impact navigation. This would align with the Act’s intention to consider geographical location as an important factor in protecting the public right to navigate. Additionally, it would promote coordination between the Navigation Protection Program and other governmental entities and allow port authorities the opportunity to be aware of and raise concerns about works that may impact navigation around ports.

Proposed Actions and Expected Outcomes

To address the issue noted above, it is recommended that the Navigable Waters Works Regulations be reviewed to:

consider setting specific criteria for works that would not interfere with navigation; and
identify works that would not interfere with navigation which could benefit from additional oversight in areas that are important to navigation.

Implementing the proposed actions would increase consistency and predictability in the process for works that would not interfere with navigation. As well, the Program could expect increased consistency in the enforcement of the Act across regions and improved oversight and protection for navigation in geographical zones that are important to navigation.

Recommendation 4: Implement Administrative Monetary Penalties

Prioritize the development and implementation of administrative monetary penalties regulations

Issue

The Navigation Protection Program lacks an enforcement tool that would be proportionate and effective for violations under the CNWA that are too severe to be addressed with warning letters and not severe enough to use coercive measures such as orders or legal prosecutions.

Analysis

The CNWA establishes an enforcement regime with five potential types of enforcement responses for Navigation Protection Program Officers to use in a graduated approach to bring owners into compliance:

verbal/written warnings (educating and informing proponents on how to come into compliance with the Act)
orders (owner would be required to resolve the issue)
executive actions (Transport Canada would resolve the non-compliance)
administrative monetary penalties^{Footnote 11} (to be established by regulations; the financial penalty would compel the proponent to return to compliance)
penal prosecutions (for non-compliances which warrant punitive sanctions)

However, the Program currently relies on warning letters as the primary enforcement response to address cases of non-compliance. Under the CNWA, administrative monetary penalties have not yet been established by regulation and cannot be used by the Navigation Protection Program to enforce the Act.Once in place, administrative monetary penalties could be issued to either individuals or corporations. As an enforcement tool, they offer an alternative to warning letters, which may not be sufficient to ensure compliance, and more severe enforcement actions such as prosecution, which can consume a significant amount of time and resources.

Administrative monetary penalties could also serve as a deterrent against non-compliance with the Act and its regulations since in addition to the monetary penalties, violations could also be made public. The introduction of administrative monetary penalties would provide a broader enforcement mechanism that is proportionate to specific circumstances, predictable in terms of consequences of contraventions of the Act, and sufficient to promote compliance.

The creation of administrative monetary penalties would align with Transport Canada’s graduated approach to enforcement and contribute to a comprehensive enforcement regime to safeguard navigation in other enforcement regimes at Transport Canda. For example, administrative monetary penalties are used to enforce the Canada Shipping Act, 2001, Railway Safety Act, Marine Transportation Security Act, and the Wrecked, Abandoned and Hazardous Vessels Act.

Proposed Action and Expected Outcomes

It is recommended that the development and implementation of the Canadian Navigable Waters ActAdministrative Monetary Penalties Regulations be prioritized.

The implementation of administrative monetary penalty regulations would be in alignment with Transport Canada’s Enforcement Policy, which recommends a graduated enforcement approach. Administrative monetary penalties would lead to increased compliance by proponents and would provide more tools for the Program to ensure enforcement actions are appropriate and proportionate based on the nature of the violation.

Operational Recommendations

The following section includes recommendations aimed at strengthening engagement with Indigenous Peoples, proponents and stakeholders, clarifying requirements and policies, improving training, and improving the efficiency and effectiveness of the Navigation Protection Program’s operations and services.

This section is sub-divided into parts based on which groups would be primarily affected by the recommendations, beginning with Indigenous Peoples, followed by the Navigation Protection Program, and finally stakeholders (such as industry or non-profit organizations), government entities, and the public.

Part 1: Indigenous Peoples

Recommendation 5: Enhance Indigenous consultation and engagement

Improve the process of Indigenous engagement and consultation

Issues

Transport Canada’s approach to engaging and consulting with Indigenous Peoples regarding the administration of the CNWA is impacting meaningful participation and contributing to consultation fatigue. Areas where improvements could be made include:

coordination among federal departments;
guidance for proponents when engaging with Indigenous Peoples;
long-term funding for Indigenous Peoples; and
bilateral relationships between Transport Canada and Indigenous Peoples.

Analysis

When the CNWA was introduced in 2019, the rights of Indigenous Peoples were a key priority. The Act was amended to include explicit language referencing Indigenous rights and knowledge in the Act. For example, the CNWA introduced new provisions to:

add the ability to enter into agreements and arrangements with Indigenous Peoples to administer the Act (e.g., co-management agreements for monitoring or enforcement);
ensure Indigenous knowledge is considered and confidential knowledge is protected from unauthorized disclosure;
explicitly include transport or travel to exercise Indigenous rights in the definition of “navigable water”; and
ensure that potential adverse impacts on Indigenous rights are considered before making a decision under the Act.

Through consultation and accommodation with Indigenous Peoples on decisions that might adversely impact rights, the Navigation Protection Program upholds the legal duty to consult.^{Footnote 12} The Navigation Protection Program conducts consultations with Indigenous Peoples through processes based on mutual respect and dialogue.

Consultation fatigue was raised repeatedly during the engagements for this review. It was noted that collaboration between government departments is crucial when engaging with Indigenous Peoples, especially for projects involving multiple regulators. Increased collaboration with other departments would reduce consultation fatigue and foster effective and cooperative relationships across departments. Interdepartmental collaboration would support the government’s broader objectives for more meaningful consultations and reconciliation with Indigenous Peoples.

In addition to consultations led by government departments, proponents often engage with Indigenous Peoples in the early stages of their project planning and share their consultation records with Transport Canada. The Crown can delegate certain procedural elements of the consultation process to these proponents.^{Footnote 13} Providing improved guidance to proponents on how to engage, such as by identifying specific questions with respect to navigability, would ensure Indigenous Peoples are able to share their concerns early in the approval process. This would help reduce overall approval timelines and ensure the duty to consult is completed in a timely and efficient manner.

There is also a need to increase long-term capacity and resources for Indigenous Peoples on an ongoing basis to support both consultations and co-management agreements. Currently, short-term funding is available for Indigenous Peoples taking part in specific consultations led by the department through the Indigenous Participant Funding Program. This program supports activities such as Indigenous Peoples’ attendance to meetings, coordination of local engagement activities, and studies. Increased long-term funding would support the meaningful contribution of Indigenous communities to consultation activities and increase predictability in funding, which would reduce consultation fatigue.

To date, the Navigation Protection Program has entered into one Memorandum of Understanding respecting a navigation study of waterways and channels in the Moose River Basin with the Moose Cree First Nation. Several Indigenous organizations noted their interest in entering into agreements with the Navigation Protection Program. This highlights the opportunity for increased efforts by the Navigation Protection Program.

Finally, Transport Canada should prioritize strengthening bilateral relationships with Indigenous Peoples during engagement and consultation processes, to ensure more consistent and robust engagement. Currently, Transport Canada’s Indigenous Relations Units are working to build relationships and trust with Indigenous communities in their respective regions. Indigenous communities have mentioned the importance of developing these relationships with government representatives, noting that trust and reciprocity are fundamental to the engagement process.

Proposed Actions and Expected Outcomes

It is recommended that the Navigation Protection Program:

enhance collaboration with other federal departments and explore the joint/integrated consultation processes for projects requiring approvals from more than one department;
develop tools (e.g. checklists, visual aids, questionnaire templates, etc.) and a guidance document for proponents to effectively engage with Indigenous Peoples in order to support Transport Canada in its fulfillment of obligations under the duty to consult;
seek to establish a funding program to support participation of Indigenous Peoples in CNWA consultations; and
strengthen bilateral relationships between Transport Canada and Indigenous communities. This could be achieved by:
- establishing ongoing forums with Indigenous Peoples;
- improving outreach and communication with Indigenous Peoples; and
- ensuring Indigenous Peoples are aware of Navigation Protection Program contacts when they have questions or concerns.

Implementing the proposed actions would lead to more efficient and effective engagement and consultation practices which would reduce consultation fatigue among Indigenous communities and enable greater participation in Navigation Protection Program processes.

Recommendation 6: Review policies, procedures, and guidance

Update and develop Navigation Protection Program policies, procedures, and guidance

Issues

The policies, procedures, and guidance require development and updates to enhance the clarity and consistency of internal processes related to the Act’s implementation across Canada, and to improve the understanding of the public and proponents. Key areas of focus that should be prioritized in the review include:

navigability assessments;
floating accommodations;
emergency authorizations; and
external guidance.

Navigability assessments

Issue

Further clarity is required on the assessment of the reasonable likelihood of future use of a navigable water, how seasonal changes affect the navigability of smaller bodies of water, and what is meant by transportation or travel in the context of Indigenous communities exercising their rights to fish, hunt, or use navigable waters for spiritual purposes.

Analysis

Industry stakeholders and proponents mentioned it can be difficult to determine when a body of water is considered a navigable water as defined in the Act and expressed a desire for additional information and tools to assist with determining navigability. Indigenous Peoples noted that current navigability assessments may not fully reflect the special relationship they have with water and their cultural practices. Several explained the importance of water for their livelihood, spiritual practices, and traditional knowledge for generations.

The Navigation Protection Program’s internal policy, procedure, and public facing guidance on navigability assessments are clear with respect to minimum physical characteristic thresholds when determining navigability. However, the documents could be strengthened by providing more guidance and clarity on what constitutes ‘reasonable likelihood of future use’ and other criteria outlined in the definition of a navigable water in the CNWA.

Upon reviewing the policy, procedure and form used for navigability assessments, there is a need to align relevant documents to ensure consistency in following the same order for factors in determining navigability. Clearer internal processes would support the development of public guidance to increase understanding of proponents and the public on how navigability assessments are conducted.

Proposed Actions and Expected Outcomes

It is recommended that the Navigation Protection Program explore new mechanisms to enhance the recognition of the special relationship Indigenous Peoples have with Canada’s navigable waters by:

continuing to develop an in-depth understanding of the importance of waterways and navigation to the way of life of Indigenous Peoples; and
ensuring the appropriate weight or importance of navigational use of a waterway by Indigenous Peoples as a consideration in navigability assessments.

The Program should also review internal policies and procedures along with public facing guidance to enhance understanding of:

navigability assessments and determination of the reasonable likelihood of future use of a waterbody;
what constitutes “part of the year” in the definition of navigable water; and
sequential navigability assessments, by considering factors in the following order:
1. Accessibility characteristics: the waterbody is accessible by the public, abutted by two or more riparian owners, or owned by the Crown;
2. Current use of the waterbody and its physical characteristics: the waterbody is currently being used by Canadians to navigate or meets the minimum physical thresholds established by the Program; and
3. Reasonable likelihood of future use: consider past usage and the public utility of the body of water for transport or travel.

Adopting this recommendation would lead to the Navigation Protection Program’s greater understanding of Indigenous perspectives and the use of navigable waters by Indigenous Peoples when conducting navigability assessments. Indigenous Peoples, proponents and stakeholders would benefit greatly if all relevant guidance documents about the Act and its processes are accessible and publicly available. Strengthening the policies, procedures, and guidance documents used for navigability assessments would provide additional clarity for proponents on how seasonal changes affect navigability and improve their ability to plan construction for periods where navigability would be less affected.

Floating accommodations

Issue

There are a growing number of situations in Canada’s navigable waters where structures are being built on barges or rafts and being anchored or moored in navigable waters for long periods of time without intent by their owners to be used for navigation. In these situations, there is uncertainty about how to identify, for the purposes of the Act, such objects as either a vessel, an obstruction, or a work.

Analysis

Floating accommodations (e.g., houseboats) could potentially be classified under the definition of either a work or a vessel under the CNWA (see the glossary in Annex C), depending on their design and intended use. For example, a floating accommodation that is not meant for travel and transport would likely be immobilized with a flotation system that is moored or secured. Under the Act, such an accommodation would be considered within the definition of a ‘’work’’, thereby requiring the owner to apply for an approval unless the floating accommodation is a minor work.

In contrast, a floating accommodation that is meant for travel and transport would likely be designed as a vessel (e.g., having a hull, a steering system, a mast). Under the Act, this type of accommodation would be more likely to fall within the definition of a ‘vessel’, therebynot requiring the owner to apply for an approval.

In both cases, the definition of an ‘obstruction’ would generally capture a work or a vessel that would render navigation more difficult or dangerous.

Due to a lack of guidance in this area, it is difficult to accurately and reliably classify floating accommodations when they are anchored or moored in navigable waters for long periods of time. This also makes it difficult for the Navigation Protection Program to take appropriate enforcement actions when floating accommodations interfere with navigation.

Proposed Action and Expected Outcomes

It is recommended that the Navigation Protection Program develop a clear guidance document to accurately define when floating accommodations should be deemed as a vessel, obstruction, or work under the Act.

Implementing the proposed action would likely result in greater clarity for addressing floating accommodations under the Act. Further, this would lead to more consistency in the enforcement response of the Program when impacts to navigation occur, thereby improving the protection of the right to navigate.

Emergency authorizations

Issue

Indigenous Peoples may not always be notified of emergency works being conducted near their communities.

Analysis

The Act outlines the criteria for classifying an emergency work. These include matters of national security, national emergencies requiring special temporary measures under the Emergencies Act, and emergencies that pose risks to public health, safety, the environment, or property. Additionally, situations threatening social disruption, or the breakdown of essential goods, services, or resources are also considered emergencies. The Minister may authorize a work to be carried out immediately if the Minister is of the opinion that it is an emergency work.

While the Navigation Protection Program must make every effort to complete consultations with potentially affected Indigenous communities prior to emergency work taking place, in some circumstances it is not possible due to the risks of delaying action. Ensuring that potentially affected Indigenous communities are notified about emergency works when consultations are unable to take place is paramount to building and maintaining strong relationships between the Government and Indigenous Peoples. This would also align with the commitment found in the United Nations Declaration on the Rights of Indigenous Peoples Act to ensure Indigenous Peoples are able to exercise and have full enjoyment of their rights to self-determination and self-government.

Proposed Action and Expected Outcomes

To address the issue noted above, it is recommended that the Navigation Protection Program introduce a requirement in its internal guidance to notify Indigenous Peoples of emergency works.

Implementing this recommendation would ensure Indigenous Peoples are aware of emergency works that may affect their rights. Additionally, this could increase clarity in the implementation of the Act pertaining to emergency authorizations across regions.

External Guidance

Issue

There is a need for more clarity in the guidance documents provided on the Navigation Protection Program’s External Submission Website.

Analysis

Guidance documents addressing subjects such as minor works, cost-recovery, access, and riparian rights are publicly available on the External Submission Website but there are none for major work types.

Indigenous Peoples, proponents and stakeholders would benefit greatly by ensuring all relevant guidance documents about the Act and its processes are accessible and publicly available. By expanding the availability of public-facing documents, the Program could enable proponents and the public to learn more about how the Act and Program works, increasing overall awareness and conformance with CNWA requirements.

For example, the Program would benefit from developing guidance on works listed in the Major Works Order. Developing and publishing these guidance documents on the External Submission Website would help improve awareness of requirements about major works among proponents.

Proposed Action and Expected Outcomes

To address the issue noted above, it is recommended that the Navigation Protection Program review all policies and guidance documents to enhance external documents and tools available on the Program’s External Submission Website.

Implementing the proposed action would likely result in increased understanding of CNWA processes and requirements by Indigenous Peoples, proponents and stakeholders.

Recommendation 7: Strengthen training for Program Officers

Strengthen the training for Navigation Protection Program Officers related to various topics under the Act

Issue

The level of discretion available and room for interpretation of certain processes or subjects under the Act impact the consistent application of provisions of the Act, particularly on the following topics:

terms and conditions of approvals;
amendments of approvals;
enforcement actions; and
Minor Works Order.

Analysis

Terms and Conditions of Approvals

Navigation Protection Program Officers have the ability under the CNWA to attach any term or condition to an approval that they consider appropriate.^{Footnote 14} Although conditions not related to navigability are permitted under the CNWA, there is uncertainty around when to add such conditions, as there may be a perception that they fall outside the Program’s mandate and may be difficult to enforce.

There is currently no existing guidance on this issue. This can increase regional discrepancies, especially in a context where Transport Canada has observed an increased demand to include non-navigation related conditions of approvals such as cultural or archeological monitors.

Amendments of Approvals

The Minister may choose to amend an approval by modifying or revoking any term or condition of the approval.^{Footnote 15} A preliminary review of the Navigation Protection Program’s data related to making small changes to existing works shows that some regions may be using one process more regularly over the other. These include:

the process for amending approvals; and,
the process for works that would not interfere with navigation.

Enforcement Actions

The Program should enhance its training on the use of enforcement actions in cases of violations under the Act. Program Officers would benefit from additional guidance on the existing range of tools that are available such as warning letters, orders, executive actions and penal prosecution.

Minor Works Order

Some proponents and stakeholders have raised concerns about a lack of consistency between regions in the way the Minor Work Orderis being interpreted and applied. There are possibly areas where some inconsistencies may exist, especially in the context of multiple minor works being constructed at once.

Proposed Actions and Expected Outcomes

It is recommended that the Navigation Protection Program review and update training materials. Specifically, the Program should focus on:

conducting a thorough review of existing training materials related to the CNWA, with a focus on terms and conditions of approvals and amending approvals by adding modules and case studies;
conducting a thorough review of existing training materials related to the Minor Works Order; and,
updating these materials to support a consistent interpretation and application of the Act’s provisions across all regions.

Additionally, the Program should improve its training program by:

developing training material for new and updated policies, procedures and guidance documents as identified in recommendation 6;
adding modules and case studies on navigability assessments, the Major Works Order, and other policies, procedures and guidance documents identified in recommendation 6; and,
incorporating specific training on handling Indigenous archaeological sites and non-navigation related conditions in alignment with the United Nations Declaration on the Rights of Indigenous Peoples Act.

The Program should also standardize training delivery by:

strengthening the standardized training delivery method across all regions to ensure uniformity and more consistent application; and,
utilizing a mix of in-person workshops, online courses, and practical case studies to enhance learning and application.

Finally, the Program should provide continuous quality assurance by:

establishing a system to monitor the effectiveness of the training program; and,
regularly updating training content based on feedback from Navigation Protection Program Officers and after changes in policies and procedures.

Improved training and materials would ultimately lead to increased compliance of proponents and more effective administration of the Act, leading to better service delivery and protection of Canadian’s public right to navigate.

Recommendation 8: Increase consistency across regions

Ensure consistency in the implementation of the CNWA across regions for all works

Issue

The Navigation Protection Program’s approach to regulating works is inconsistent across regions.

Analysis

To effectively implement and administer the CNWA, Transport Canada relies on a network of regional offices spread across the country. Successful implementation of any federal law or program requires consistent interpretation and application of federal laws and guidelines by regional officers. In the case of the CNWA, uniformity in implementing regulations, policy requirements and guidance helps to ensure that all Navigation Protection Program procedures and approvals are consistent, reliable, and predictable.

The Navigation Protection Program is organized into five operational regions: Pacific, Prairie and Northern, Ontario, Quebec, and Atlantic. This structure aims to implement the Act in a manner reflecting each region's unique realities and geographical contexts. However, as a national program operating across an extensive territory, the Navigation Protection Program faces challenges in ensuring uniformity and consistency in the Act’s implementation nationwide. The effectiveness of a regulatory regime hinges on its ability to maintain consistency, transparency, and predictability.

Stakeholders raised concerns about inconsistencies in how works are assessed across regions. Discussions were held with Navigation Protection Program personnel across the country to understand how they interpret the Act and how they apply its provisions. Based on these discussions and a a review of the internal Navigation Protection Program database, regional disparities were found in the suite of provisions used by Program Officers, enforcement actions taken, and the use of pre-submission services^{Footnote 16}. As a result, there is a need for greater consistency in the interpretation and application of the CNWA.

Proposed Actions and Expected Outcomes

To address the issue noted above, it is recommended that the Navigation Protection Program:

establish a quality assurance program to monitor the consistency of regional approvals and navigability assessments by collecting data, meeting with the regions on an ongoing basis to ensure consistent implementation of guidance for all works, and establishing a national oversight plan;
perform annual quality assurance audits using available data to look for inconsistencies in approaches used across different regions and work to correct them through oversight, enhanced guidance and training; and
enhance training for Navigation Protection Program Officers to improve consistency.

Implementing the proposed actions would increase the predictability of CNWA administration for proponents. It would also improve consistency in the interpretation and enforcement of the Act across regions, which is anticipated to help limit the number of cases that require judicial review.

Part 3: Stakeholders, Proponents, Governments and the Public

Recommendation 9: Increase education and outreach

Increase education and outreach efforts to stakeholders, proponents, governments, and the public

Issue

Public awareness of the Navigation Protection Program and the CNWA could be improved. Additionally, those that are familiar with the Program have experienced challenges in navigating the requirements of the Act and processes.

Analysis

Program representatives participate in industry-led events when invited and offer pre-submission services to proponents to answer questions related to navigation considerations, legislative requirements, and processes and procedures under the CNWA. The availability of these services generally becomes known to proponents when they are experiencing difficulties, rather than through proactive outreach and awareness-raising. The lack of an extensive outreach campaign by the Navigation Protection Program was identified as contributing to a general lack of awareness of the Act, its regulations, and the services available to assist proponents.

Indigenous Peoples, proponents and stakeholders requested clarity concerning CNWA processes, including how navigability is assessed, how to request navigable waters be added to the Schedule, and how the public resolution process works. They also indicated that it would be helpful to receive notifications about works being built. Although there are helpful resources and services available for those who have questions about CNWA requirements and processes, and the ability to receive notifications about works being built already exists, not all proponents and stakeholders are aware of the tools available to assist them.

Proposed Action and Expected Outcomes

To address the issue noted above, it is recommended that the Navigation Protection Program expand current outreach and engagement efforts to increase the awareness of the Act among proponents, stakeholders, governments and the public. The Program should also promote the tools and services that are available to assist proponents and the public.

To achieve this, the Navigation Protection Program should develop an annual outreach strategy to take a more proactive approach when engaging with Indigenous Peoples and stakeholders. The strategy should outline more opportunities for the Program to be present in proponent spaces to share information about the Act and its provisions, as well as the available tools and services. For example, the Navigation Protection Program could set up informational booths at more industry and events, schedule ongoing discussions with different sectors and hold ongoing information sessions with interested proponents.

Implementing the proposed actions would enhance existing relationships with proponents, stakeholders, governments and the public, increasing the overall awareness of the CNWA and the Navigation Protection Program. This would also increase awareness of existing online tools and improve the use of Navigation Protection Program services.

Recommendation 10: Review the online platform

Review the Navigation Protection Program’s External Submission Website

Issue

The Navigation Protection Program’s External Submission Website needs to be enhanced to improve the user experience and availability of easily understandable tools and guidance information.

Analysis

The External Submission Website provides Canadians with a central point to submit an application for approval, publish notifications for works, and request an exemption for a prohibited activity. It also allows Canadians to submit comments on projects that are published on the public registry while the comment period is open, and it provides the ability to subscribe to notifications for projects within a specific area.

An informal review of the External Submission Website was conducted to get a sense of the user experience. The site is challenging to navigate and could be more user-friendly. Furthermore, the information available on the platform is inconsistent and difficult to locate. For example, guidance documents are available to explain certain work types but not others. The website also requires creating an account to access the information. In addition, some existing works were not visible on the map when performing a search on the website.

The Project Review Tool available on the External Submission Website provides proponents with the ability to self-assess which CNWA process is required for their proposed work. However, the tool uses technical language and jargon that may be difficult for the public to understand. Therefore, the program could benefit from reviewing the website for plain language and introducing more visual elements to improve the end-user experience.

Proposed Action and Expected Outcomes

To address the issues noted above, it is recommended that the Navigation Protection Program develop a plan for ongoing improvement of the External Submission Website. The plan should include:

publishing relevant Navigation Protection Program policies;
reviewing the documentation available online, including the various application guides aimed at proponents, to ensure clarity and the use of plain language;
increasing visual tools available to the public that provide an overview of the various CNWA processes; and
collecting and reporting internally on feedback from users on the external platform, and using the feedback to make improvements.

Implementing the proposed action would lead to a more user-friendly experience, with less technical jargon and more visual aids. It would also improve the ability of Indigenous Peoples, proponents and stakeholders to be aware of and provide comments about works in their areas. Finally, it would improve their access to documents and external guidance, resulting in better understanding of CNWA processes and requirements.

Recommendation 11: Collaborate with federal entities

Increase collaboration with federal departments and entities and across Transport Canada

Issue

There is a need to improve communication, collaboration, and coordination between different federal departments and entities. This is needed to address duplications, delays, and added complexity for proponents seeking an application for approval or exemption under the CNWA, along with other authorizations required by the federal government.

Analysis

While the Navigation Protection Program has a well-defined mandate and specific authorities under the CNWA, other federal departments (e.g., Environment and Climate Change Canada, Fisheries and Oceans Canada, the Department of National Defence, Natural Resources Canada and Parks Canada) are often involved in works regulated under the Act. For instance, Transport Canada might approve a work within a small craft harbour managed by Fisheries and Oceans Canada, a historic canal overseen by Parks Canada, or a harbour under the jurisdiction of the Department of National Defence.

This intersection may result in duplication and add complexity for proponents seeking to proceed with a project. Federal departments sometimes operate in silos which can result in inefficient project approval processes. No formal mechanisms exist to systematically share information and resources when conducting inspections under different federal statutes, representing a missed opportunity to support the broader federal enforcement regime.

There is also a need for improved communication within Transport Canada. During discussions with other programs in the Department, it was noted that some Transport Canada inspectors outside of the Navigation Protection Program have limited awareness of the CNWA and its requirements. They are therefore not able to inform proponents and stakeholders of their potential obligations with respect to navigable waters.

The review team held bilateral meetings with federal partners, including Fisheries and Oceans Canada, Environment and Climate Change Canada, and Parks Canada, which are often involved in regulating the same projects as the Navigation Protection Program. Federal partners acknowledged that there are opportunities to work together more closely to improve efficiency, reduce duplication, and reduce the risk of delays in the issuing of approvals, strengthening the overall efficiency of the federal regulatory regime.

Proposed Actions and Expected Outcomes

To address the issue noted above, it is recommended that the Navigation Protection Program:

proactively increase formal and systematic communication channels with relevant federal departments and entities (such as Fisheries and Oceans Canada, Environment and Climate Change Canada, Parks Canada, and the Department of National Defence) to share information at different stages of the regulatory process (e.g., pre-submission services, application, or enforcement, etc.);
explore potential for Memoranda of Understanding with other federal partners and academia to leverage technical expertise (e.g., regarding hydrology^{Footnote 17}); and
explore potential for Memoranda of Understanding to delegate certain administrative authorities under the CNWA to other federal partners where appropriate, including with the Department of National Defence’s King’s Harbour Master^{Footnote 18} and Parks Canada‘s Superintendent in charge of administering the Historic Canals Regulations.^{Footnote 19}

Implementing the proposed actions would improve the Navigation Protection Program’s awareness of major projects or proposals that would require an approval at an earlier stage, leading to more efficient information-gathering. The Navigation Protection Program would benefit from leveraging federal expertise, such as hydrological knowledge. Such knowledge would lead to a deeper understanding of the potential impact of works on water levels and flow and support the Program’s ability to fulfill the CNWA mandate efficiently. Additionally, by delegating responsibilities under the Act, the Navigation Protection Program would broaden its ability to administer and enforce the Act, therefore reducing duplication between federal departments and entities.

Recommendation 12: Collaborate with provincial and territorial government entities

Increase collaboration with provincial and territorial government entities

Issue

Transport Canada, along with provincial and territorial governmental entities, each have mandates related to activities in the marine environment. This overlap can create confusion regarding the application of federal and provincial statutes. Consequently, opportunities for collaboration may be missed, and inefficiencies between the two levels of government can persist.

Analysis

Navigation Protection Program regional offices often work with provinces and territories in administering the Act, particularly in the areas of road construction and natural resource management (e.g. mines, aquaculture, and forestry). However, improvements can still be made to enhance oversight and enforcement regimes under the CNWA.

Since provincial Crown land borders most lakes and rivers in Canada, provincial governments have a direct interest in how the CNWA is administered and enforced nationwide. The Navigation Protection Program does not consistently consult with provinces before approving works on provincial Crown land. This represents a missed opportunity, because Provincial officers, with their in-depth understanding of local issues, can highlight concerns that the Navigation Protection Program might not otherwise recognize, such as the cumulative impacts on navigation of multiple works in a particular area.

Proposed Action and Expected Outcomes

To address the issue noted above, it is recommended that the Navigation Protection Program:

explore Memorandums of Understanding (MOUs) with provincial and territorial ministries that have inspectors to increase oversight; and
establish and implement formal consultation processes with provincial authorities for works on provincial Crown land.

Implementing the proposed actions would increase oversight capabilities and support the effective and efficient use of Navigation Protection Program resources. The Program would also increase its understanding of local conditions and the potential cumulative impacts of works. In turn, this is expected to improve navigation protection across Canada.

Recommendation 13: Document decision-making

Formalize the documentation of decisions made under the CNWA

Issue

Proponents and the public do not have access to documents that clearly explain the factors considered and the reasoning behind a decision of the Navigation Protection Program. This leaves uncertainty on how concerns raised during the comment period were considered or addressed.

Analysis

When issuing an approval, the Navigation Protection Program provides a cover letter along with the approval document explaining the terms and conditions that an owner of an approved work must comply with. These documents are available on the Common Project Search website which is accessible to the public, but the information provided does not clearly indicate the factors considered and how certain concerns were addressed.

If proponents or the public disagree with a decision made by the Navigation Protection Program, a judicial review is the only recourse available to them. Judicial reviews can be time- and resource-consuming for all parties involved.

Proposed Action and Expected Outcomes

To address the issue noted above, it is recommended that the Navigation Protection Program enhance access to documentation that clearly explains the reasoning and factors considered for all decisions made under the Act. For example, the Navigation Protection Program provides information about the factors considered during decision-making in publicly available approvals.

Implementing the proposed action would improve transparency in decision-making. It is also anticipated that there would be fewer cases requiring judicial review if Indigenous Peoples, proponents and stakeholders were provided more information on the factors considered.

Recommendation 14: Implement service targets

Implement approval service targets

Issue

There are currently no service targets for the review of applications for approval of works, which leads to a lack of predictability in the review and approval process.

Analysis

Transport Canada currently does not have service targets for reviews of applications for approval of works.

A review of internal data showed that in approximately 80% of cases, Transport Canada makes decisions on applications for approval of works within 90 working days of receiving the application. However, this excludes the time required for Environmental Assessments, Indigenous consultations, external reviews, and proponent actions. Transport Canada’s evaluation of an application cannot proceed until these steps, which are outside of the department’s control, are completed.

Data also shows that there are regional disparities in terms of the timelines required to process applications for approval. Upon investigation, the longer timelines in some regions are mainly due to project complexity as well as the need for external reviews, as well as the large number of Indigenous communities that must be engaged in consultations.

Budget 2024 introduced a requirement for permits for clean growth projects to be granted within a timeframe of two years. This requirement is applicable to applications for approval of works made under the CNWA.

Additionally, after the coming into force of the Canadian Navigable Waters Act Fees Regulations on July 3, 2024, there is growing pressure for Transport Canada to commit to service targets to allow for more predictable timelines and consistency across regions now that fees are being charged for services.

Proposed Actions and Expected Outcomes

To address the issue noted above, it is recommended that the Navigation Protection Program:

increase the predictability and transparency for the approval of works through the implementation of service targets;
increase clarity on how external reviews and pauses in the approval process on the part of proponents can affect approval timelines; and
implement clear internal processes to track and monitor service target timelines.

Implementing service targets would result in improved predictability and transparency for proponents, and improved consistency in timelines to approve works across the department. It would also provide the Navigation Protection Program with the ability to identify and address issues in the approval process.

Recommendation 15: Increase awareness of Orders in Council process

Improve awareness of the Orders in Council process for exemptions

Issue

The process to obtain an Order in Council for exemptions related to prohibited activities under the CNWA can be lengthy and requires specific information from proponents. Proponents are not always aware of the requirements tied to these prohibited activities, which can cause delays to the timely advancement of their projects.

Analysis

Under the CNWA, throwing or depositing certain materials into a navigable water or dewatering a navigable water to a level that extinguishes navigation is prohibited. The Governor in Council may, by order, exempt navigable waters from the prohibited activities if the Governor in Council is satisfied that it would be in the public interest.

An analysis of existing data in Transport Canada’s internal database revealed that exemption requests for prohibited activities are predominantly related to the mining industry. Since the Act's inception, only two projects, both in Quebec, have received Orders exempting a total of 29 navigable waters from prohibited activities:

Rose Lithium-Tantalum Mining Project with 28 navigable waters exempted (SOR/2023-213, October 6, 2023)
Galaxy Lithium with one navigable water exempted (SOR/2024-102, May 27, 2024)

In both cases, the exemptions concerned dewatering of navigable waters for mining projects, and Indigenous communities were the focus of consultations as they were the most impacted by the proposed projects. Both Orders were preceded by over a decade of consultations between the mining companies and the affected communities.

The Orders in Council process follows the Treasury Board of Canada Secretariat’s Cabinet Directive on Regulation. Notably, the Cabinet Directive on Regulation stipulates that a regulation (such as an exemption Order) should only be made when there is no alternative, given the amount of time and resources required. There may be opportunities to explore using alternative mechanisms under the CNWA to address dewatering and the depositing of materials in certain circumstances. For example, in circumstances where the proposed dewatering is the result of a work and would not extinguish navigation as a result of sufficient mitigation measures, it is possible that an exemption request would not be needed.

Additionally, through the outreach and awareness activities outlined in recommendation 9, the greater collaboration with federal government departments and entities outlined in recommendation 11, and the Government of Canada initiatives tied to clean growth projects, further efficiencies in the process can be found.

Proposed Actions and Expected Outcomes

To address the issues noted above, it is recommended that the Navigation Protection Program:

continue to work closely with industry to support timely Orders in Council processes by ensuring that all necessary information is received early in the process and that industry is aware of the information required by the program;
collaborate with other departments involved with projects to streamline efforts and improve the sharing of information that will increase the efficiency of the Orders in Council process by reducing delays often caused by missing information; and
continue to explore the use of alternatives (such as mitigation measures) to the Orders in Council process when appropriate.

Implementing the proposed actions would result in earlier involvement and information-gathering by the Navigation Protection Program for projects requiring exemption orders, which is anticipated to lead to improved timelines to complete Orders in Council. In addition, using alternatives to the Orders in Council process, where appropriate, would ensure compliance with the Cabinet Directive on Regulation, and would result in faster timelines than proceeding with Orders in Council.

Conclusion

The preceding sections and recommendations stem from the comprehensive engagements and rigorous analysis conducted by the review team. While significant strides have been made in administering the CNWA, and it is generally functioning as intended, certain gaps persist, necessitating further improvements.

At the legislative level, the review team recommends the ability to create regulations to exclude certain structures, devices, or things from the definition of a work. At the regulatory level, the legislative review team recommends reviewing the Minor Works Orderand exploring updates to the Navigable Waters Works Regulations. Finally, at the operational level, recommendations include changes to Navigation Protection Program policies and guidance documents, Program Officer training, engagement with Indigenous Peoples and collaboration with other orders of government.

Acknowledging the Act's many strengths in protecting the public right to navigation, this legislative review identified areas for potential enhancement. The collaborative input from Indigenous Peoples, proponents, stakeholders and the public have been invaluable in assessing the Act's efficacy and identifying opportunities for refinement to ensure it continues to serve the best interests of Canadians. The recommendations put forth aim to fortify the Act's legislative and regulatory framework, ensuring enhanced oversight and meaningful engagement of Canada's navigable waters moving forward.

Annexes

Annex A: List of recommendations

Recommendation 1: Add the authority to create regulations to exclude certain “structures, devices or things” from the CNWA’s definition of a work

Recommendation 2: Explore whether the Minor Works Order could:

include more types of works that are likely to slightly interfere with navigation; and
be limited to exclude its application in certain geographical zones that are critical important to navigation.

Recommendation 3: Explore updates to the Navigable Waters Works Regulations to:

set specific criteria for identifying works that would not interfere with navigation; and
limit the application of the process for works that would not interfere with navigation in certain geographical zones where navigation is important.

Recommendation 4: Prioritize the development and implementation of administrative monetary penalties regulations

Recommendation 5: Improve the process of Indigenous engagement and consultation

Recommendation 6: Update and develop Navigation Protection Program policies, procedures, and guidance

Recommendation 7: Strengthen the training for Navigation Protection Program Officers related to various topics under the Act

Recommendation 8: Ensure consistency in the implementation of the CNWA across regions for all works

Recommendation 9: Increase education and outreach efforts to stakeholders, proponents governments, and the public

Recommendation 10: Review the Navigation Protection Program’s External Submission Website

Recommendation 11: Increase collaboration with federal departments and entities and across Transport Canada

Recommendation 12: Increase collaboration with provincial and territorial government entities

Recommendation 13: Formalize the documentation of decisions made under the CNWA

Recommendation 14: Implement approval service targets

Recommendation 15: Improve awareness of the Orders in Council process for exemptions

Annex B: Summary of overall engagement

Groups	Number of meetings	Number of participating groups	Number of written submissions	Number of questionnaire responses
Governments	42	22	15	N/a
Industry	8	16	7	N/a
Recreational groups	2	6	4	N/a
Indigenous peoples	23	45	8	N/a
Questionnaire respondents	N/a	N/a	N/a	155
Grand total	75	89	34	155

Annex C: Glossary

The following definitions may be useful in reading this legislative review report:

Distinctions-based approach is an approach to engagement with Indigenous Peoples that acknowledges that each Indigenous community has a unique culture, territory, history and relationship with the Government of Canada, as well as unique strengths to build on and challenges to face. A distinctions-based approach means working independently with First Nations, Inuit and Métis in recognition of their unique attributes.

Indigenous knowledge The Indigenous knowledge of the Indigenous Peoples of Canada.

Indigenous Peoples of Canada has the meaning assigned by the definition aboriginal peoples of Canada in subsection 35(2) of the Constitution Act, 1982.

Major work means any work designated under paragraph 28(2)(b).

Minister means the Minister of Transport.

Minor work means any work designated under paragraph 28(2)(a).

Navigable water means a body of water, including a canal or any other body of water created or altered as a result of the construction of any work, that is used or where there is a reasonable likelihood that it will be used by vessels, in full or in part, for any part of the year as a means of transport or travel for commercial or recreational purposes, or as a means of transport or travel for Indigenous Peoples of Canada exercising rights recognized and affirmed by section 35 of the Constitution Act, 1982, and

there is public access, by land or by water;
there is no such public access but there are two or more riparian owners; or
Her Majesty in right of Canada or a province is the only riparian owner.

Obstruction means any thing, including a vessel that is left anchored, moored or adrift or a wreck, that obstructs or impedes navigation or renders it more difficult or dangerous, but does not include a thing of natural origin unless a person causes the thing of natural origin to obstruct or impede navigation or to render it more difficult or dangerous.

Outcome-based regulations specify objectives or required outcomes rather than the means by which they must be achieved. Companies and individuals are free to choose how they comply with the regulatory requirements.

Owner, in relation to a work, means the actual or reputed owner of the work or that owner’s agent or mandatary. It includes a person who is in possession or claiming ownership of the work and a person who is authorizing or otherwise responsible for the construction, placement, alteration, rebuilding, removal, decommissioning, repair, maintenance, operation, use or safety of the work. It also includes a person who proposes to construct or place a work.

Riparian owner refers to a person who owns land bounding upon a river, lake, or other water course.

Scheduled waters are navigable waters that are listed in the Schedule of the CNWA. Unscheduled waters may be navigable but are not listed in the Schedule. Requirements under the CNWA may differ based on whether the navigable water is “scheduled” or “unscheduled”.

Vessel includes any description of ship, boat or floating craft designed, used or capable of being used for navigation, without regard to method or lack of propulsion, including everything forming part of its machinery, tackle, equipment, cargo, stores or ballast.

Work includes

any structure, device or other thing, whether temporary or permanent, that is made by humans, including a structure, device or other thing used for the repair or maintenance of another work; and
any dumping of fill in any navigable water, or any excavation or dredging of materials from the bed of any navigable water.

Annex D: List of structures, devices, or things for potential exclusion from the definition of a work

Aids to navigation buoys – These are buoys used by Canadian Coast Guard and other entities to mark properly the channels that navigators should be following or that assists navigators in warning them in Canada’s waterways.
Fishing gear – Some fishing gear types are currently considered as works, such as lobster cages or other type of cages used to fish, netting, etc.
Under Bridge Inspection Unit Trucks (Bucket Trucks) – Primarily used in relation to bridges, these are trucks that come to a halt and have a bucket where inspectors can be lifted over the bridge and under it to inspect the structure.
Nautical event buoys – Numerous nautical sports racing events, such as for dragon boat racing or canoe races or other type of races, may place buoys to signal areas where the racers must turn.
Oil spill containment and other emergency environmental response equipment along with equipment used during training sessions (such as turbidity curtains) –Numerous federal and provincial or municipal organizations or hired groups by governmental entities called upon to respond to oil spill containments and other emergency environmental responses place “structures” or “devices” in the navigable water to address the situation.
Geotechnical testing – These are devices that are usually from barges, and they are considered “any excavation or dredging materials from the bed of any navigable water”.

Legislative Recommendations

Recommendation	Action	Timeline	Expected Output	Expected Outcome
Exclusion of specific works from the definition of a work	Excluding Specific Works: Amend subsection 28(1) of the CNWA to allow the Governor in Council to exclude certain structures, devices or things from the definition of a work	Fall 2025 – Fall 2027	The legislation is amended	Adoption of a risk-based approach More effective allocation of Navigation Protection Program resources, allowing the Program to focus on works that have more significant impacts on navigation Address potential overlaps with other federal regulators (e.g., Fisheries and Oceans Canada)
Fall 2027 – Fall 2029	A new regulation is created, or existing regulatory instruments are amended (e.g., Navigable Waters Works Regulations)

Recommendation

Action

Timeline

Expected Output

Expected Outcome

Exclusion of specific works from the definition of a work

Excluding Specific Works:

Amend subsection 28(1) of the CNWA to allow the Governor in Council to exclude certain structures, devices or things from the definition of a work

Fall 2025 – Fall 2027

The legislation is amended

Adoption of a risk-based approach

More effective allocation of Navigation Protection Program resources, allowing the Program to focus on works that have more significant impacts on navigation

Address potential overlaps with other federal regulators (e.g., Fisheries and Oceans Canada)

Fall 2027 – Fall 2029

A new regulation is created, or existing regulatory instruments are amended (e.g., Navigable Waters Works Regulations)

Regulatory Recommendations

Recommendation	Action	Timeline	Expected Output	Expected Outcome
Review processes for works that slightly interfere with navigation	Expanding the Minor Works Order: Explore whether the Minor Works Order should include more types of works that are likely to slightly interfere with navigation	Spring 2025 – Spring 2027	A review is completed If appropriate, the Minor Works Order is amended	Reduction of administrative and compliance burden for proponents Reduction of Navigation Protection Program Officers workload Resources can be focused on works that have more significant impacts on navigation
	Expanding Oversight: Explore whether the Minor Works Order should be limited to exclude its application in certain geographical zones that are important to navigation.	Spring 2025 – Spring 2027	A review is completed If appropriate, the Minor Works Order is amended	Improved oversight and protection for navigation in geographical zones that are important to navigation
Review processes for works that would not interfere with navigation	Setting Specific Criteria: Review the Navigable Waters Works Regulations to consider setting specific criteria for works that would not interfere with navigation	Fall 2027 – Fall 2029	The Navigable Waters Works Regulations are amended alongside the action outlined in recommendation 1	Consistency and predictability in the process for works that would not interfere with navigation Increased consistency in the enforcement of the Act across regions
	Expanding Oversight: Review the Navigable Waters Works Regulations to identify structures, devices or things that would not interfere with navigation which could benefit from additional oversight in areas that directly impact navigability of waters within a port’s jurisdiction	Fall 2027 – Fall 2029	The Navigable Waters Works Regulations are amended alongside the action outlined in recommendation 1	Improved oversight and protection for navigation in geographical zones that are important to navigation
Implement Administrative Monetary Penalties	Administrative Monetary Penalties: Prioritize the development and implementation of the Canadian Navigable Waters Act Administrative Monetary Penalties Regulations	Summer 2024 – Fall 2026	The Canadian Navigable Waters Act Administrative Monetary Penalties Regulations are developed and implemented	Alignment with Transport Canada’s graduated approach to enforcement Increased compliance More tools to ensure enforcement actions are appropriate and proportionate based on the nature of the violation

Operational Recommendations

Recommendation	Action	Timeline	Expected Output	Expected Outcome
Enhance Indigenous consultation and engagement	Interdepartmental collaboration: Collaborate with other federal departments and explore the possibility of joint/integrated consultation processes for projects requiring approvals from more than one department	Ongoing	A joint consultation process is finalized with other departments	Reduction of consultation fatigue among Indigenous communities More efficient and effective engagement and consultation processes
	Proponents engaging with Indigenous Peoples: Develop tools and guidance for proponents to use when engaging with Indigenous Peoples	Fall 2025 – Fall 2026	A suite of tools (e.g. checklists, visual aids, questionnaire templates, etc.) and a guidance document are developed to help proponents engage effectively with Indigenous Peoples	Reduction of consultation fatigue among Indigenous communities More efficient and effective engagement and consultation processes
	Long-term funding: Seek to establish a funding program to support participation of Indigenous Peoples in CNWA consultations	Ongoing	Long-term funding for consultations is provided to assist Indigenous People to fully participate Long-term funding for co-management agreements is provided to assist Indigenous People to fully participate	Greater participation of Indigenous Peoples in engagements and consultations Greater use of co-management agreements
	Bilateral relationships: Strengthen bilateral relationships between Transport Canada and Indigenous communities	Ongoing	Ongoing forums established with Indigenous Peoples Improved outreach and communication with Indigenous Peoples Indigenous Peoples are aware of who to contact if they have questions or concerns	Improved bilateral relationships with Indigenous Peoples Relationships between Transport Canada and Indigenous Peoples are built on trust
Review policies, procedures, and guidance	Navigability assessments Clarify requirements on the assessment of the future use of a body of water, how seasonal changes affect the navigability of smaller bodies of water, and what is meant by transportation or travel in the context of Indigenous communities exercising their rights to fish, hunt, or use navigable waters for spiritual purposes	Fall 2025	Navigation Protection Program policies, procedures and guidance are improved with greater recognition and understanding of Indigenous perspectives Navigation Protection Program policies, procedures and guidance are improved with greater clarity on how seasonal changes affect navigability Policies, procedures, and guidance are made public, where appropriate	Greater understanding of Indigenous perspectives and appropriate weight placed on the use of a navigable water by Indigenous Peoples as a consideration in navigability assessments Clarity for proponents on how seasonal changes affect navigability Improved ability for proponents to plan construction for periods where navigability would be less affected
	Floating accommodations: Develop a clear approach to define when floating accommodations should be deemed as a vessel, obstruction or work under the Act	Summer 2025	A policy or guidance document is developed or amended to clearly define when floating accommodations should be deemed as a vessel, obstruction, or work under the Act	Greater clarity and improved enforcement Improved protection of the right to navigate Increased consistency in the enforcement of the Act across regions
	Emergency authorizations: Introduce a prescriptive requirement in internal guidance to notify Indigenous Peoples of emergency works conducted in their area and create a more detailed procedure on how this is to be done	Fall 2024	Detailed directive is developed on how to notify Indigenous Peoples of emergency works	Indigenous Peoples are aware of emergency works that may affect their rights Increased clarity in the implementation of the Act across regions
	External guidance: Enhance external documents and tools available on the Program’s External Submission Website	Summer 2025	Policy, procedure or guidance documents on major works (e.g. aquaculture facilities, causeways, and bridges) are developed and published on the External Submission Website	Improved understanding of CNWA processes and requirements by Indigenous Peoples, proponents and stakeholders
Training for Program Officers	Terms and conditions of approvals: Strengthen training on the use of terms and conditions when issuing approvals of works	Fall 2025	Training on the use of terms and conditions, including those not related to navigation, is provided to new and existing Navigation Protection Program Officers	Increased awareness and knowledge of CNWA provisions among Navigation Protection Program Officers Improve the efficacy of Officer onboarding and increase knowledge building Improved consistency in the interpretation and the enforcement of the Act across regions
	Amendment of approvals: Strengthen training on the ability to amend existing approvals and using the process for works that would not interfere with navigation	Fall 2025	Training on amending approvals and using the process for works that would not interfere with navigation is provided to new and existing Navigation Protection Program Officers	Increased awareness and knowledge of CNWA provisions among Navigation Protection Program Officers Improve the efficacy of Officer onboarding and increase knowledge building Improved consistency in the interpretation and the enforcement of the Act across regions
	Enforcement actions: Strengthen training on the use of enforcement actions that can be taken under the Act	Fall 2025	Training on the usage of different enforcement tools under the CNWA (e.g. warning letters, orders, executive actions) is developed and included in the Navigation Protection Program Learning Continuum	Increased awareness and knowledge of CNWA provisions among Navigation Protection Program Officers Improve the efficacy of Officer onboarding and increase knowledge building Improved consistency in the interpretation and the enforcement of the Act across regions
	Minor Works Order: Strengthen training aimed on how minor works are assessed, especially in the context of multiple minor works being constructed at once	Fall 2025	Training on interpretation of the Minor Works Order and the use of the process for works that would not interfere with navigation is provided to new and existing Navigation Protection Program Officers	Increased awareness and knowledge of CNWA provisions among Navigation Protection Program Officers Improve the efficacy of Officer onboarding and increase knowledge building Improved consistency in the interpretation and the enforcement of the Act across regions
Consistency across regions	Enhanced monitoring: Monitor regional approvals and navigability assessments by gathering data and meeting with regional teams on an ongoing basis to ensure consistent implementation of guidance	Ongoing	Regional approvals and navigability assessments are monitored by Navigation Protection Program headquarters and instances of inconsistency are identified and addressed Establishing a national oversight plan	Increased predictability of CNWA administration for proponents Improved consistency in the interpretation and the enforcement of the Act across regions Fewer cases requiring judicial review
	Quality assurance: Conduct annual quality assurance audits to identify and correct inconsistencies across regions	Ongoing	Annual quality assurance audits are undertaken to identify and correct general inconsistencies across regions	Increased predictability of CNWA administration for proponents Improved consistency in the interpretation and the enforcement of the Act across regions Fewer cases requiring judicial review
	Improving consistency: Enhance training for Navigation Protection Program Officers to improve consistency	Fall 2025	Training for Navigation Protection Program Officers is updated to improve uniformity in applying administrative amendments and processing works that do not interfere with navigation	Increased predictability of CNWA administration Improved consistency across regions Fewer cases requiring judicial review
Increase education and outreach	Outreach and engagement: Outline more opportunities for the Program to be present in proponent spaces to share information about the Act and its provisions	Ongoing	An annual outreach plan is developed by the Navigation Protection Program to proactively identify opportunities for the Program to conduct outreach and engagement with proponents	Increase of comprehension and awareness of the Act Enhancement of existing relationships with proponents, stakeholders, governments and the public Improved the use of Navigation Protection services
Review online platforms	Improvements to External Submission Website: Develop a plan for ongoing improvement of the External Submission Website	Winter 2025	A plan for identifying, testing and implementing ongoing improvements to the External Submission Website is developed and actioned Documentation available online, including the various application guides aimed at proponents, are reviewed to ensure clarity and the use of plain language Additional visual tools that provide an overview of the various CNWA processes have been made available to the public Relevant Navigation Protection Program policies are published on the website	More user-friendly experience, with less technical jargon and more visual aids Improved ability for Indigenous Peoples, proponents, stakeholders, and members of the public to be aware of and provide comments about works in their areas Improved access to documents and external guidance resulting in better understanding of CNWA processes and requirements
Collaboration with federal entities	Collaboration with federal entities: Proactively establish formal and systematic communication channels with relevant federal departments and agencies	Summer 2025	Information-sharing channels are strengthened with other relevant federal regulators	Improved awareness by the Navigation Protection Program of major projects or proposals at an early stage More efficient information-gathering Improved ability to coordinate with other federal departments and agencies Reduced duplication
Collaboration with federal entities	Leveraging federal expertise: Explore potential for Memoranda of Understanding to delegate certain administrative authorities under the CNWA with other federal partners where appropriate, including with the Department of National Defence’s King’s Harbour Master18 and Parks Canada‘s Superintendent in charge of administering the Historic Canals Regulations	Summer 2026	Memoranda of Understanding are collaboratively developed with other federal partners	Federal expertise from other departments or agencies is leveraged to fulfill the CNWA mandate with greater efficiency
Collaboration with provincial and territorial entities	Collaboration with provincial and territorial authorities: Explore potential Memoranda of Understanding with provincial and territorial ministries that have inspectors to increase oversight	Summer 2026	Memoranda of Understanding are collaboratively developed with provincial ministries	Improvement in oversight capabilities More effective and efficient use of Navigation Protection Program resources Improved navigation protection
Collaboration with provincial and territorial entities	Consulting with provincial authorities: Establish and implement formal consultation processes with provincial authorities for works on provincial Crown land	Summer 2025	Establishment of a formal consultation processes between Transport Canada and provincial authorities	Improved understanding of local conditions and the potential cumulative impacts of works Improved navigation protection
Documentation of decision-making	Documentation of decision-making: Enhance access to documentation that clearly explains the reasoning and factors considered for decisions made under the Act	Winter 2025	Enhanced access to documentation explaining factors considered in decision-making by stakeholders and proponents	Improved transparency for proponents and stakeholders on the factors considered in decision-making Fewer cases requiring judicial review
Service targets	National service targets: Increase predictability by implementing a nation-wide service target for the approvals of works	Winter 2025	A nation-wide service target for the approval of works has been developed and implemented across regions	Improved predictability for proponents Improved consistency in timelines to approve works across regions
	Improving clarity and awareness: Increase clarity on how external reviews and proponent actions can affect approval timelines	Winter 2025	Opportunities to improve awareness among proponents about potential sources of delay during the approval process for works have been identified and actioned	Improved predictability and understanding for proponents
	Performance monitoring: Implement clear internal processes to track and monitor timelines	Winter 2025	A formal approach to internally track and monitor work approval timelines is developed and integrated	Improved consistency in timelines to approve works across regions Ability to identify and address issues in the approval process
Orders in Council process	Enhancing awareness: Continue to work closely with industry to support timely Order in Council processes	Ongoing	Formalized stakeholder outreach strategy is developed to better support proponents in navigating Order in Council processes under the CNWA	Improved awareness of the Orders in Council process among proponents Earlier involvement and information-gathering by Transport Canada for projects requirement exemption orders. Improved timelines to complete Orders in Council.
	Collaboration: Collaborate with other departments involved with projects to streamline efforts and improve the sharing of information	Ongoing	Opportunities to improve information-sharing efforts between departments are identified and actioned	Earlier involvement and information-gathering by Transport Canada for projects requiring exemption orders Improved timelines to complete Orders in Council
	Alternative mechanisms: Continue to explore the use of alternatives (such as mitigation measures) to the Orders in Council process when appropriate	Ongoing	Alternatives to the Orders in Council are used, where appropriate	Faster timelines than proceeding with Orders in Council Compliance with the Cabinet Directive on Regulationrequirement to consider regulations as a last resort

Footnotes

Footnote 1

A distinctions-based approach acknowledges that each Indigenous community has a unique culture, territory, history and relationship with the Government of Canada, as well as unique strengths to build on and challenges to face. A distinctions-based approach means working independently with First Nations, Inuit and Métis in recognition of their unique attributes.

Return to footnote 1 referrer

Footnote 2

Scheduled waters are navigable waters that are listed in the Schedule of the CNWA. Unscheduled waters may be navigable but are not listed in the Schedule. Requirements under the CNWA may differ based on whether the navigable water is “scheduled” or “unscheduled”.

Return to footnote 2 referrer

Footnote 3

Not including those going through the public resolution process or not needing approval due to causing no interference to navigation.

Return to footnote 3 referrer

Footnote 4

Under section 2 of the CNWA.

Return to footnote 4 referrer

Footnote 5

Under subsection 28(1) of the CNWA.

Return to footnote 5 referrer

Footnote 6

An action plan for all the recommendations has been developed and is provided in Annex E.

Return to footnote 6 referrer

Footnote 7

Under paragraph 10(1)(b) and section 10.1 of the Canadian Navigable Waters Act, a process which requires the owner of the work that may interfere with navigation, on a non-scheduled navigable water, to publish a notice about their work and address any navigation-related comments received from the public directly.

Return to footnote 7 referrer

Footnote 8

Outcome-based regulatory requirements specify the desired result that a regulation intends to achieve, rather than describing a specific process or action that must be followed to achieve compliance, as in prescriptive regulations.

Return to footnote 8 referrer

Footnote 9

Under sections 4.1 and 9.1 of the CNWA.

Return to footnote 9 referrer

Footnote 10

Under section 6 of the CNWA.

Return to footnote 10 referrer

Footnote 11

Administrative monetary penalties are monetary penalties that can be imposed by regulators when there is non-compliance with designated provisions of an Act or regulation.

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Footnote 12

Transport Canada has a legal duty to consult Indigenous Peoples when there is contemplated ‘Crown Conduct’ that might adversely impact Indigenous rights as recognized and affirmed by section 35 of the Constitution Act, 1982. Crown conduct refers to the Crown's own activities, such as land disposal, park creation, infrastructure development, Treaty implementation, or to Crown activities and authorizations and permits for projects to be carried out by a third party.

Return to footnote 12 referrer

Footnote 13

See the Library of Parliament’s Background Paper on the Duty to Consult.

Return to footnote 13 referrer

Footnote 14

Under subsection 7(9) of the CNWA.

Return to footnote 14 referrer

Footnote 15

Under subsection 9(1) of the CNWA.

Return to footnote 15 referrer

Footnote 16

The Navigation Protection Program offers pre-submission services, which provide support and guidance to owners of works concerning navigation considerations, legislative requirements, as well as processes and procedures under the Act. These services must be sought out in advance of a submission of a completed application for approval.

Return to footnote 16 referrer

Footnote 17

Hydrological knowledge could be leveraged to support the Navigation Protection Program to consider water level and flow under the CNWA.

Return to footnote 17 referrer

Footnote 18

The King’s Harbour Master in Esquimalt Harbour, administered by the Department of National Defence, is responsible under the Canada Marine Act for ship control within harbour. The King’s Harbour Master also considers the CNWA in all matters including private dock installations and commercial activities.

Return to footnote 18 referrer

Footnote 19

The Superintendent, responsible for administering the Historic Canals Regulations, already considers navigation before issuing permits for activities.

Return to footnote 19 referrer

Charting Progress on the Public Right to Navigate in Canada: The 2024 Canadian Navigable Waters Act Legislative Review Report and Recommendations

Administration of the Canadian Navigable Waters Act

Recommendation 1: Exclude specific works from the definition of a work

Issue

Analysis

Proposed Action and Expected Outcomes Footnote 6

Recommendation 2: Review processes for works that slightly interfere with navigation

Issue

Analysis

Expanding oversight in certain geographical areas

Proposed Actions and Expected Outcomes

Recommendation 3: Review processes for works that would not interfere with navigation

Issue

Analysis

Setting specific criteria

Expanding oversight in certain geographical areas

Proposed Actions and Expected Outcomes

Recommendation 4: Implement Administrative Monetary Penalties

Issue

Analysis

Proposed Action and Expected Outcomes

Part 1: Indigenous Peoples

Recommendation 5: Enhance Indigenous consultation and engagement

Analysis

Proposed Actions and Expected Outcomes

Part 2: Navigation Protection Program

Recommendation 6: Review policies, procedures, and guidance

Issues

Navigability assessments

Floating accommodations

Emergency authorizations

External Guidance

Recommendation 7: Strengthen training for Program Officers

Issue

Analysis

Proposed Actions and Expected Outcomes

Recommendation 8: Increase consistency across regions

Issue

Analysis

Proposed Actions and Expected Outcomes

Part 3: Stakeholders, Proponents, Governments and the Public

Recommendation 9: Increase education and outreach

Issue

Analysis

Proposed Action and Expected Outcomes

Recommendation 10: Review the online platform

Issue

Analysis

Proposed Action and Expected Outcomes

Recommendation 11: Collaborate with federal entities

Issue

Analysis

Proposed Actions and Expected Outcomes

Recommendation 12: Collaborate with provincial and territorial government entities

Issue

Analysis

Proposed Action and Expected Outcomes

Recommendation 13: Document decision-making

Issue

Analysis

Proposed Action and Expected Outcomes

Recommendation 14: Implement service targets

Issue

Analysis

Proposed Actions and Expected Outcomes

Recommendation 15: Increase awareness of Orders in Council process

Issue

Analysis

Proposed Actions and Expected Outcomes

Conclusion

Annexes

Annex A: List of recommendations

Annex E: Canadian Navigable Waters Act review: Navigation Protection Program action plan

Legislative Recommendations

Regulatory Recommendations

Operational Recommendations

Proposed Action and Expected Outcomes^{Footnote 6}