Canadian Navigable Waters Act legislative review: Discussion paper

As part of the legislative review process of the Canadian Navigable Waters Act, this discussion paper will guide engagement with Indigenous Peoples and various stakeholders to find out where we can improve the Act, and where we can build upon successes.

On this page

• Introduction
• Scope
• Recent changes to the legislation
  • Rights of Indigenous Peoples
• Background
  • The Canadian Navigable Waters Act
  • Transport Canada’s role
  • Navigable waters
• Canadian Navigable Waters Act requirements
  • Processes for works on navigable waters
  • Prohibited activities
• How to participate
• How the information you provide will be used
• Next steps
• Annex A: Discussion questions
  • Theme 1: Intention of the Act
  • Theme 2: Indigenous partners and peoples
  • Theme 3: Navigable waters
  • Theme 4: Works
  • Theme 5: Schedule/Public Resolution
• Annex B: Statistics

Introduction

The Canadian Navigable Waters Act (CNWA) came into force on August 28, 2019.

The Minister of Transport (the Minister) must perform a legislative review of the Act within five years of it coming into force, and produce a report that is tabled before Parliament.

The CNWA Legislative Review Team^{Footnote 1} will be engaging with partners and stakeholders, developing recommendations, and writing the final report.

This paper is meant to guide the discussions to find out where we can improve the Act, and where we can build upon successes.

Scope

The goal of this legislative review is to find out where the Act is working well, where it needs to be improved, and if it is working as intended. As such, the CNWA Legislative Review Team will engage with Indigenous Peoples, other government departments, Provinces and Territories, municipalities, industry/private sector, the public, and other stakeholders to ask them where improvements are needed.

Anyone may participate in the discussions, and all feedback related to the Act or its implementation is welcome.

Recent changes to the legislation

Navigation protection legislation has recently undergone major changes. In 2009, amendments made the application process for public infrastructure and natural development projects faster. More changes were introduced in 2012, including renaming the Navigable Waters Protection Act to the Navigation Protection Act (NPA).

The 2012 amendments focused on protecting the busiest navigable waters, which were listed in a new schedule of the Act. The amendments gave the Minister the power to authorize emergency works and prohibited dewatering any navigable water. They also required notifying the Minister and taking corrective measures if a work causes, or is likely to cause, serious and imminent danger to navigation.

In 2019, further amendments were made to restore lost protections and ensure greater oversight of navigable waters in Canada. The NPA was renamed to the Canadian Navigable Waters Act. These amendments introduced key changes to increase the protection of navigable waters, such as:

• a new requirement for approvals of major works^{Footnote 2}, (like large dams), that significantly impact navigation on all navigable waters, even in waters not listed in the schedule
• extending requirements for minor works^{Footnote 3} so they would apply to all navigable waters in Canada
• a process to notify the public of proposed works and give an opportunity for Canadians to engage before construction begins on any navigable water
• extending the applicability of the Minister’s authorities to address obstructions on all navigable waters
• a public resolution process led by the owner of the proposed work for addressing navigation concerns about proposed works, other than minor and major works, on unscheduled navigable waters
• giving the Minister the authority to add waters to the list of scheduled navigable waters
• creating an online registry^{Footnote 4} of projects and approvals
• consideration of Indigenous Knowledge^{Footnote 5} in decision-making

Rights of Indigenous Peoples

The Act considers Indigenous Knowledge and Aboriginal and treaty rights under section 35 of the Constitution Act, 1982 in its implementation and administration. In 2019, the Act was amended to:

• recognize Indigenous use of water bodies for transport or travel to exercise their section 35 constitutional rights in the definition of “navigable water”
• explicitly include the rights of Indigenous Peoples and the duty of the Minister to consider any adverse effects that decisions made under the Act may have on the rights of Indigenous Peoples
• include Indigenous Knowledge as a factor to consider when assessing applications for approvals of works
• ensure that Indigenous Knowledge^{Footnote 6} that is provided to the Minister under the Act in confidence remains confidential and will not knowingly be disclosed without written consent

Background

The Canadian Navigable Waters Act

The Act regulates things which could interfere with navigation. This includes works, human-made obstructions, and prohibited activities like throwing or depositing materials and dewatering. The Act is the modern-day version of legislation that has existed with different names since the late 1800s.

The Act applies to anyone, including industry, all levels of government, and the public, who is:

• obstructing navigation in Canadian navigable waters
• an owner of work(s) on navigable waters
• planning something that will affect navigation in navigable waters

The Act is focused on protecting the right of navigation. However, we recognize that exercising Indigenous rights^{Footnote 7} overlaps with impacts to navigation, noting that navigation may be related to fishing, hunting, harvesting, trapping, and access to potential rights. Transport Canada coordinates with other departments and provincial/territorial governments when they have related decisions for a work.

Transport Canada’s role

Transport Canada’s is responsible for administrating and enforcing the Act. This is done through regional offices located across Canada. The Navigation Protection Program receives applications, conducts assessments, and provides approvals to construct, place, alter, rebuild, remove or decommission works in navigable waters. These works range from private installations to large-scale international mining operations.

The Act allows the Navigation Protection Program to address man-made obstructions^{Footnote 8} that may impact navigation. Obstructions can include drifting or sunken vessels or pieces of a dock moved by floods. Transport Canada can order the owner of an obstruction to address the issue or use a third party to remove the obstruction. See Annex B for statistics on how the Act has been implemented.

Navigable waters

Section 2 of the CNWA provides a definition of navigable water.^{Footnote 9}A navigable water is one that the public and Indigenous Peoples have a right to use for travel or transport. It can include a canal, or any other body of water created or altered by construction. It may be navigated by large commercial vessels, or smaller vessels such as kayaks, canoes, and other small personal boats. Some factors that are used to determine whether a body of water is navigable include:

• if it is used for transport or travel for commercial or recreational purposes
• if it is used by Indigenous Peoples for transport or travel exercising their section 35 constitutional rights
• if it was used in the past or is likely to be used in the future for transport or travel
• if there is public access by land or water

The definition of navigable water does not include artificial irrigation channels or drainage ditches.

The Act includes a schedule^{Footnote 10} of navigable waters that are deemed as requiring supplementary review or assessment for works because of their importance to navigation. These are called scheduled navigable waters.

All other navigable waters not listed on the schedule are called non-scheduled navigable waters. They are protected by most of the provisions in the Act, but under certain conditions, owners may be able to proceed with their works without approval. These conditions are described in the next section.

The Minister may add a navigable water to the schedule by order after considering factors like the physical characteristics of the navigable water, the use of the water by Indigenous Peoples to navigate, and the cumulative impact of works on navigation in the water.

Canadian Navigable Waters Act requirements

To facilitate effective navigation, the Act includes multiple processes outlining requirements for owners of existing and proposed works on navigable waters in Canada. The processes for an owner wishing to construct, place, alter, rebuild, remove or decommission a work in, on, over, under, through or across any navigable water differs based on whether the work is:

• a minor work, a major work, or other work that falls outside of those categories
• on a scheduled navigable water or a non-scheduled navigable water.

Table 1: Categories of waters and works

Category of work	Navigable water listed on the schedule	Navigable water not listed on the schedule
Works that would not interfere with navigation (No interference*)	Owner must deposit information on public registry and provide public notice. Examples of where a public notice can be published or posted include newspapers, marine publications, marinas, postage of signage on site and project-specific website.	Owner must deposit information on public registry and provide public notice. Examples of where a public notice can be published or posted include newspapers, marine publications, marinas, postage of signage on site and project-specific website.
Minor works (slight interference)	Owner must comply with the Minor Works Order (for example, erosion protection works, docks, and boathouses)	Owner must comply with the Minor Works Order (for example, erosion protection works, docks, and boathouses)
Major works (substantial interference)	Owner must apply to Transport Canada for approval (for example, water control structures and ferry cables)	Owner must apply to Transport Canada for approval (for example, water control structures and ferry cables)
All other works that may interfere (other than major and minor works)	Owner must apply to Transport Canada for approval	Owner must either: Apply for approval or Conduct a public resolution process**

* In certain specific instances, some major works could be deemed no interference.

** Notify the public, invite public comments, and resolve any navigation concerns. Commenters with unresolved concerns can ask Transport Canada to review the concern and determine if the owner must apply for an approval.

Processes for works on navigable waters

There are five processes for different circumstances:

1. Approval process^{Footnote 11}

All major works, except major works that would not interfere with navigation, in any navigable water and works that may interfere with navigation on a scheduled water require approval from the Minister. The owner must provide information about the work in an online registry and publish a public notice to inform interested parties. The public may raise concerns with Transport Canada. The Minister decides whether to grant approval after completing the review.

2. Emergency works process

The Act outlines a process for Transport Canada to authorize works in urgent situations, like rebuilding bridges after natural disasters. When urgent repairs are needed for public safety, some requirements like providing information in the registry and public notices may be skipped with authorization by Transport Canada.

3. No interference process

Works (including major works) only need approval if they interfere with navigation.^{Footnote 12} If a work does not interfere with navigation, owners must provide information on the online registry and publish a public notice.

4. Minor Works Process

Minor works can be built in any navigable water if they meet the criteria for the applicable class of works as well as specific terms and conditions set out in the Minor Works Order. Some minor works require the owner to provide information on the online registry and publish a public notice.

5. Public Resolution Process

Works that may interfere with navigation on a non-scheduled navigable water may use the public resolution process and post the project on the online registry. The owner will receive comments from the public and must address any navigation-related concerns before constructing, placing, altering, rebuilding, removing or decommissioning the work. If a concern related to navigation is not resolved by the owner, the person who made the comment may ask the Minister to decide if the owner is required to apply for approval for the work.

Prohibited Activities

Some activities are prohibited in navigable waters and waters that flow into navigable waters to keep navigation safe. These activities include the throwing or depositing of:

• floatable rubbish (like sawdust, edgings, slabs, bark or similar rubbish) that could interfere with navigation
• sinkable rubbish (like stone, gravel, earth, cinders, ashes or other material) in waters shallower than 36 meters
• dewatering that lowers water levels, and makes navigation impossible for any type of vessel

Under certain circumstances, an order by the Governor in Council can provide an exemption for a prohibited activity.

How to Participate

The discussion paper will be posted on Transport Canada’s website for 60 days from March 6th until May 5th. Feedback on the discussion questions listed in Annex A can be shared:

1. by email: TC.CNWAreview-ExamenLENC.TC@tc.gc.ca;
2. by mail: Joseph Kokou, Navigation Protection Program, Transport Canada, 330 Sparks Street, Ottawa, Ontario, K1A 0N5.

How the Information You Provide Will Be Used

Your input and responses will help inform the review of the Act and the Review Team’s recommendations. The Review Team may use concepts and ideas to create material for other engagements.

Your responses will be confidential in the final report. Input and responses will be aggregated and will not identify any individual unless you provide explicit permission.

Next steps

Discussions with Indigenous Peoples, other government departments, provinces, territories, and municipalities, industry/private sector, and other interested parties are planned between February and May 2024. Feedback will be analyzed and shared in a “What We Heard” report that will be posted online and used to develop the recommendations for the final report. The final report will be tabled in Parliament in early fall 2024.

If the report leads to proposed legislative amendments, there will be further engagement and discussion before those changes become law.

Annex A: Discussion questions

This discussion paper focuses on key areas of the Act and captures issues raised to date. While the discussion questions are centered around five themes, we welcome feedback on all aspects of the Act and its implementation:

1. The intention of the Act;
2. Indigenous partnership
3. Navigable waters
4. Works
5. The schedule/public resolution process

Theme 1: Intention of the Act

The purpose of the Canadian Navigable Waters Act is to balance protecting the public right of navigation with the need to place works in, over, under or through water. The Act keeps waterways accessible for Canadians by reducing interference caused by works wherever possible. Note that environmental impacts do not generally fall under the Act.

Since the Act’s implementation in 2019, amendments have been made to the Minor Works Order and the Major Works Order to support the implementation of the Act and better reflect its intention.

1. Since the implementation of the Act in 2019, has your experience navigating on Canada’s waterways improved, gotten worse, or stayed the same? Why?
2. What are your thoughts on the provisions and/or operation of this Act? What recommendations would you make to improve things?

Theme 2: Indigenous Partners and Peoples

Indigenous Peoples were integral to the review of the Navigation Protection Act in 2018. This allowed us to advance reconciliation and create new opportunities for Indigenous Peoples to partner with Canada. Elements related to Indigenous Knowledge and rights were integrated into the CNWA as a result of the review.

Previous changes to the legislation in 2009 and 2012 restricted where the Act applied and resulted in fewer protections. The 2019 amendments were meant to restore these lost protections and reaffirm the Government’s commitment to work with Indigenous Peoples to protect Canada’s navigable waterways.

1. Since the implementation of the Act in 2019, has your experience navigating Canadian waterways to exercise rights recognized and affirmed by section 35 of the Constitution Act, 1982 been impacted? If so, how?
2. Does Transport Canada consult with Indigenous Peoples appropriately on decisions made under the Act that impact you, your community, your organization, or your government? What could be improved?

Theme 3: Navigable Waters

The Act provides a more detailed definition of “navigable water”^{Footnote 13} than the previous Navigation Protection Act.^{Footnote 14} It includes any body of water used or likely to be used for transportation or travel, including transport or travel by Indigenous Peoples exercising their constitutional rights.

Scheduled waters receive the highest level of protection under the Act. Non-scheduled navigable waters are also protected, but requirements around works can be more flexible based on their impact to navigation.

1. Do you think the current definition of “navigable water” includes bodies of water that do not need the protection of the public right to navigate? Can you provide an example?
2. Do you think the current definition of “navigable water” excludes bodies of water that need the protection of the public right to navigate? Can you provide an example?

Theme 4: Works

Owners of major works in any navigable water must apply to Transport Canada for approval to proceed. This includes hydroelectric dams, bridges with pillars in water, and causeways. It also includes other works that may interfere with navigation on scheduled waters. In some cases, where the Minister determines there would be no interference with navigation, the Minister may inform the owner that approval is not required.

Urgent repairs are sometimes needed in situations Transport Canada considers an emergency. There is an emergency works process that allows some requirements, like providing information in the registry and public notices, to be skipped for public safety.

Minor works (such as boathouses and cottage docks) and works in non-scheduled waters that would slightly interfere with navigation do not need approval. However, in some cases owners may need to submit information to the online registry and publish a public notice.

The Act gives the Minister the authority to require the owner of a work to maintain the water level or water flow needed for navigation. This provision shows the importance of preserving navigable conditions in Canada's waterways, aligning with the broader objectives of the Act to protect and manage the nation's navigable waters effectively.

1. When building a work in a navigable water, have you faced any barriers due to CNWA requirements? How have these barriers impacted your use of the waterway? Do you have any suggestions for how to address these barriers while still protecting the right to navigate?
2. Are works appropriately categorized between the Major Works Order, Minor Works Order, and works other than a major work or a minor work? Are the requirements for major works and minor works sufficient to protect the right to navigate these waters?
3. Does the public online registry provide sufficient opportunities to comment on a project’s impact on navigation before its construction? Are your comments addressed in a meaningful way?

Theme 5: Schedule/Public Resolution

Under the Act, owners of works on non-scheduled waters may choose to go through the public resolution process. Under this process, the owners of proposed works are responsible for receiving and addressing all navigation-related concerns from the public.

Waters may be added to the schedule through a Ministerial order.

1. In the public resolution process, the owner of the work has the responsibility to address any navigation-related comments received. What has been your experience with this process, either as the commenter or the owner of the work?
2. The Act has changed the process for adding navigable waters to the schedule. What is your opinion on this process?
3. Is Transport Canada’s protection of the public right to navigate on non-scheduled navigable waters sufficient?

Annex B: Statistics

Annex B provides statistics on:

• the number of works approved by the Navigation Protection Program since the implementation of the Act
• the number of works that did not require approval
• the files opened by Navigation Protection Program officers on obstructions
• the addition of bodies of water to the schedule
• applications for exemptions for prohibited activities under the Act

Figure 1: Overview of approved works each year since the implementation of the Act

Figure 1 description

Figure 1: Overview of approved works each year since the implementation of the Act.

A bar graph that identifies the number of works approved under the Act since 2019. Between 2019 and 2023, the number of works approved were: 43 in 2019, 522 in 2020, 607 in 2021, 527 in 2022, and 571 in 2023.

Figure 2: Overview of applications not requiring a formal approval as per the Act's requirements

Figure 2 description

Figure 2: Overview of applications not requiring a formal approval as per the Act's requirements. 

A bar graph that shows the number of works received that did not require a formal review. For the “no interference” category, there were 46 works in 2019, 210 in 2020, 349 in 2021, 319 in 2022, and 429 in 2023. For the “public resolution” category, there were 23 works 2019, 466 in 2020, 201 in 2021, 152 in 2022, and 188 in 2023. For the “minor work” category, there were 0 works in 2019, 0 in 2020, 119 in 2021, 358 in 2022, and 458 in 2023.

Figure 3: Total number of works not requiring a formal review (2019-2023)

Figure 3 description

Figure 3: Total number of works not requiring a formal review (2019-2023) 

A bar graph that shows the total number of works between 2019 and 2023 that did not require a formal review. For the “no interference” category there were 1343. For the “public resolution” category there were 1030. For the “minor work” category, there were 935.

Figure 4: Requests received by Transport Canada

Figure 4 description

Figure 4: Requests received by Transport Canada 

A bar graph that displays the total amount of requests Transport Canada received from 2019 – 2023 concerning three activities: obstructions, applications for exemptions under 24(1), and additions of bodies of water to the Schedule. For obstructions, 24 requests were received in 2019, 98 in 2020, 64 in 2021, 74 in 2022, and 89 in 2023. For applications for exemptions under 24(1), 1 request was received in 2019, 3 in 2020, 25 in 2021, 7 in 2022, and 32 in 2023. For additions of bodies of water to the Schedule, no requests were received between 2019 and 2022, and 34 requests were received in 2023.

*Note: The process for adding a body of water to the schedule of the Act was only finalized in 2023, which is why there is no data for previous years.

Figure 5: Requests received by Transport Canada (2019-2023)

Figure 5 description

Figure 5: Requests received by Transport Canada (2019-2023)

A bar graph that displays the total amount of requests Transport Canada received from 2019 – 2023 concerning three activities:  addition of a water body to the Schedule (34), exemption applications (68), and Obstructions (349).

*Note: The process for adding a body of water to the schedule of the Act was only finalized in 2023, which is why there is no data for previous years.