Between December 2023 and May 2024, Transport Canada consulted the public on the implementation of the Canadian Navigable Waters Act (CNWA) to determine ways in which the Act or its administration could be improved. This report summarizes what we heard during this consultation.
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Background
The Canadian Navigable Waters Act (CNWA) came into force on August 28, 2019. The CNWA includes a requirement for the Minister of Transport to review the provisions and operations of the Act before the end of the fifth year after it came into force. Consequently, the review must be completed by August 27, 2024, and Transport Canada must produce a report of its findings that will be tabled before Parliament.
Our engagement approach
Engagement methodology
To evaluate the implementation of the Act, Transport Canada engaged Indigenous Peoples, federal departments and entities, provincial and territorial governments, municipalities, industry representatives, recreational waterway users, and the public.
Engagement activities, including in-person and virtual meetings, took place from December 2023 to May 2024. Engagement activities were promoted by reaching out directly to potential participants via email and by raising awareness via social media such as Twitter and Facebook.
As part of its overall engagement activities, Transport Canada actively sought feedback from federal and provincial partners, stakeholders and, Indigenous Peoples by:
- Emailing information and invitations to participate;
- Organizing in-person engagement sessions for Indigenous Peoples across Canada, including the Pacific region, Prairies and Northern region, Ontario region, Quebec region, and Atlantic region;
- Holding virtual engagement sessions for those who were not able to attend the in-person sessions;
- Holding virtual engagement sessions with stakeholders including industry and not-for-profit groups, federal and provincial partners, and municipal associations;
- Conducting ad-hoc bilateral meetings as requested;
- Posting a discussion paper online on March 6, 2024, which was open for comments for 60 days; and
- Posting an online questionnaire on April 24, which was open for 30 days.
Engagement with Indigenous Peoples
Transport Canada developed an Indigenous Engagement and Partnership Plan to serve as guidance for conducting engagement activities with Indigenous Peoples, in alignment with the United Nations Declaration on the Rights of Indigenous Peoples Act. Transport Canada reached out to National Indigenous Organizations (NIOs) in the planning stages of the review to be involved early in the process and provide input. Transport Canada specifically sought input from NIOs on the Indigenous Engagement and Partnership Plan, as well as on the Stakeholders Engagement Plan and the discussion paper. Transport Canada’s aim in engaging with Indigenous Peoples was to:
- Inform and maintain awareness, understanding, and knowledge of the CNWA legislative review among Indigenous Peoples;
- Gather input and knowledge from Indigenous Peoples regarding views on the legislation and the implementation of the Act since it came into force in 2019;
- Advance the principles of reconciliation with Indigenous Peoples, based on recognition of rights, respect, co-operation, and partnership;
- Engage on the potential impacts of the Act on the ability to exercise Aboriginal and treaty rights;
- Engage with Indigenous Peoples regarding how the CNWA currently considers Indigenous Knowledge, or any other cultural considerations and customs, related to navigation; and
- Ensure that our approach to engagement considered the needs and concerns of Indigenous Peoples.
During the engagement phase, Transport Canada held a total of 23 meetings virtually and in-person with Indigenous Peoples. A distinctions-based approach was followed, recognizing the unique rights, interests and circumstances of First Nations, Inuit, and Métis. The team met with four Métis groups, five Inuit representatives and 27 First Nations. The team also held ten meetings with five NIOs including the Assembly of First Nations, Inuit Tapiriit Kanatami, the Manitoba Métis Federation, the Congress of Aboriginal Peoples, and the Native Women’s Association of Canada.
The meetings were virtual except for in-person meetings for Indigenous Peoples held in Vancouver, Yellowknife, and Dartmouth. Opportunities to meet in Ottawa, Winnipeg and Montreal were also offered. The variety of meeting types and locations not only allowed for taking a distinctions-based approach but were also responsive to meeting requests from Indigenous Peoples during the engagement phase and considered varying regional contexts and accessibility.
In addition to meetings, a discussion paper and a questionnaire were posted online and shared with Indigenous Peoples for their feedback. Seven written submissions were received from Indigenous Peoples in response to the discussion paper and engagement sessions.
Funding was available through the Indigenous Participation and Funding Program to support Indigenous groups attendance in the engagement meetings as well as to support in the preparation of responses to the discussion paper.
Engagement with stakeholders
Transport Canada engaged with a variety of internal and external stakeholder groups. These groups included industry organizations and associations, not-for-profit groups, federal departments and entities, provincial and territorial governments, and municipalities.
Transport Canada conducted a series of virtual outreach and engagement sessions with 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.
As noted in the previous section, Transport Canada concurrently collected feedback on the CNWA from the discussion paper and online virtual questionnaire. In total, Transport Canada received 33 written submissions, and 155 responses to the questionnaire. Responses to the questionnaire were anonymous.
Engagement participation
Transport Canada would like to thank the people and organizations who took the time to meet with us, respond to the online questionnaire, and provide us with written submissions. The table below summarizes participation by Indigenous Peoples, provinces, territories, and municipalities, as well as stakeholders from the industry and not-for-profit sectors, and members of the public.
Participation Summary Table
| Participants | Meetings | Written Submissions |
|---|---|---|
| First Nations, Inuit, and Métis | 23 | 7 |
| Industry | 8 | 7 |
| Federal departments | 15 | 9 |
| Provinces, territories, and municipalities | 6 | 6 |
| Not-for-profit groups and members of the public | 2 | 4 |
| Total | 54 | 33 |
What we heard
The feedback from engagement sessions and written submissions, including responses to the discussion paper and online questionnaire, provided Transport Canada with valuable insights and suggestions. As the feedback was analyzed, it was clear that there are key areas of interest to stakeholders and Indigenous Peoples.
Consequently, we have organized the summary of the feedback received into eight themes, which are presented in the following sections in no particular order.
Theme 1: Navigability assessment
Industry stakeholders 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. They also suggested that some artificial waterbodies should be excluded from the definition of a navigable water.
Indigenous Peoples noted that the current definition of navigable water treats waterways as a commodity, and that a more holistic definition and approach to determining navigability would better incorporate Indigenous experiences and perspectives. Transport Canada also heard that greater attention should be placed on the impacts of climate change over time, as existing issues related to low or excess level of water are expected to increase in the future.
One provincial ministry noted that changes could be made to the current approach to determining navigability to make it less subjective. Another provincial ministry indicated that the current definition of navigable water is too broad, and that works in non-navigable sections of a navigable waterway should not be regulated under the CNWA. This ministry also expressed a preference to revert to the previous approach under the Navigation Protection Act where works only required approval from Transport Canada if they affected waters listed in the Schedule of the Act.
Federal departments noted they have observed that those who build works do not always fully understand how their activities affect navigability, and what their obligations are in scheduled navigable waters versus unscheduled navigable waters.
Theme 2: Consulting with Indigenous Peoples
Indigenous Peoples and members of the mining industry expressed a preference for federal departments to coordinate their consultations to avoid approaching Indigenous Peoples multiple times for the same projects. There is a need to minimize consultation fatigue among Indigenous communities and organizations, as they do not have the capacity to respond to all requests for consultation.
A few Indigenous communities also took the opportunity to share information about their work in developing community mapping systems to document historic/past, present and future usage of navigable waters by Indigenous Peoples.
Members of the mining industry noted they sometimes struggle to obtain information about past and future use of a waterway, which is required in order to determine if a body of water is navigable, and that seeking out this information appears to contribute to consultation fatigue.
One provincial ministry suggested there should be better coordination between federal and provincial governments, to take full advantage of provincial expertise and that Transport Canada should be involved in the conceptual stages of a proposed project to address the concerns of Indigenous Peoples early on. Another provincial ministry suggested that Transport Canada develop guidance materials to facilitate and clarify the process to follow when Indigenous communities express concerns about a proposed work via the public registry.
Theme 3: Intergovernmental coordination
Stakeholders from the mining industry indicated that it would be helpful if federal departments coordinated their requests for information and shared information where possible to reduce the need to submit the same information multiple times.
Federal departments informed Transport Canada that there are opportunities to improve coordination and communication between federal departments concerning projects under the Impact Assessment Act, to ensure the level of assessment and consultation is appropriate for the scope and magnitude of a project.
Additionally, they indicated they would also benefit from having access to the data that Transport Canada collects, which could help them improve the accuracy of navigation charts and assist with their analysis of the impacts works and other activities have on Canada’s waterways.
Additionally, they indicated they would also benefit from having access to the data that Transport Canada collects, which could help them improve the accuracy of navigation charts and assist with their analysis of the impacts works and other activities have on Canada’s waterways.
Some provincial ministries and federal departments indicated that improved and consistent information sharing by Transport Canada would help them to fulfill their own mandates, and better serve Canadians. In cases where Transport Canada becomes aware of proposed projects earlier than other federal departments or provincial ministries who are likely to be implicated, advance notice of the projects would assist in their efforts to make project proponents aware of the requirements they must follow under various federal and provincial acts early on, helping to avoid delays.
They also indicated that there may be a need to review responsibilities between Transport Canada and other government departments respecting abandoned equipment such as fishing nets and guidance documents concerning private aids to navigation. Additionally, one provincial ministry noted there are potential issues when it comes to projects aiming to dismantle works to protect aquatic habitats, which may be refused approval under the CNWA because they interfere with the right to navigate.
Transport Canada also heard that there is potential for collaboration with federal and provincial partners on compliance monitoring activities, through information-sharing between inspectors working in the field, and by exploring the possibility of establishing joint inspections. This could allow for more efficient use of resources and improve the sharing of knowledge and expertise.
Theme 4: Training and enforcement
Transport Canada heard from the aquaculture industry and federal government departments that requirements respecting works appear to be interpreted differently in different regions, and interpretations by Transport Canada officials can also vary. Some stakeholders described receiving conflicting information from different officials.
It was indicated by federal government departments that current compliance monitoring practices may not be sufficient to follow up and confirm that works have been built exactly as described in applications for approval.
Theme 5: Classification of works
Members of the aquaculture industry indicated that the Major Works Order should differentiate between aquaculture works that have low impacts and high impacts on navigability. A provincial ministry similarly noted that some major works, such as dams, are not all the same size and, due to their geographical location, may not have the same impact on navigation. In their opinion, they should not be systematically classified as major works.
Provincial ministries told Transport Canada that the current requirements for temporary works under the Major Works Order and the Minor Works Order are not flexible enough, which can lead to increased administrative burden and costs.
Federal departments, provincial ministries and members of the mining industry indicated that they found the approval process for works with a limited impact on navigation to be too burdensome.
Theme 6: CNWA processes
Processes for works
Industry members from the mining and energy sectors indicated that it can be difficult to determine the correct process to use under the CNWA for building works, as it is not always clear which category their proposed works fall under. They noted that generally, choosing the correct process to follow for works, especially those that are not considered major works or minor works and are being constructed in non-scheduled navigable waters (waters that are not listed in the CNWA’s Schedule), can be difficult, and the timelines for these processes are unclear.
Provincial ministries and members of the mining and energy industry also noted there is confusion about the circumstances in which new approvals from Transport Canada are required when changes are being proposed to an existing major work. They suggested that it would be helpful to have a visual aid (like a flowchart) for interpreting the CNWA requirements posted on the department’s website.
Transport Canada heard from a provincial ministry and members of the energy industry that applications for approval require the submission of certain types of information before they are available. For example, when third party contractors are used for construction, the application needs to be made before the contractors are hired, however the exact methodology/details for construction that are requested as part of the approval process will not be known at that stage.
A provincial ministry and members of the energy industry noted that the Act sometimes makes it difficult to proceed with urgent maintenance or repair work, like when the need for such work becomes clear only after the spring freshet, because the construction season is short but there is not an undisputable emergency as defined under the Act.
Federal departments and provincial ministries informed Transport Canada that it can sometimes take a long time to review an application for approval, which can make it difficult to plan accordingly for construction of projects (e.g., timing construction for when they would be less likely to affect navigation or interfere with fishing seasons). They suggested that Transport Canada should have service standards or predictable timelines for issuing approvals.
Provincial ministries noted that the quality of applications for approval could be improved if Transport Canada developed a document outlining best practices for major works.
Prohibited activities
Members of the mining industry raised concerns that the current process for granting exemptions for prohibited activities, such as dewatering a waterbody, requires an Order to be made by the Governor in Council and leads to delays.
Indigenous Peoples indicated that more could be done to address the consequences to navigation of cumulative water withdrawals on downstream dewatering.
Public notices and comments
Indigenous Peoples noted that it would be helpful in the determination of cumulative impacts if public notices concerning proposed works included information on the lifecycle of the work (i.e., how long the work might be in use).
One provincial ministry argued that current requirements around public notices and comment periods could be clearer, as it is not always easy to tell when public notices must include a comment period. Another suggested that they sometimes disagree with Transport Canada’s decisions to impose additional requirements on a project in response to comments received from the public. They noted these additional requirements can increase costs and the amount of time needed to move forward with their projects.
Theme 7: Miscellaneous
Transport Canada heard from members of the aquaculture industry that aquaculture marking requirements such as applying paint or reflective tape to equipment could be more flexible, as the current approach is costly and supplies of these materials are not always easy to acquire. They further suggested that greater flexibility is needed for requirements respecting buoys.
Concerns were also raised about biosecurity, and the importance of taking these concerns into account when conducting inspections to ensure that pathogens, viruses or bacteria are not transferred between quarantined and healthy sites.
Indigenous Peoples recommended that efforts be made to ensure the CNWA is aligned with the United Nations Declaration on the Rights of Indigenous Peoples Act. Of note, a few Indigenous representatives also indicated to Transport Canada that the engagement timelines for the CNWA legislative review were short.
A provincial ministry and recreational users of waterways expressed concerns that houseboats remaining anchored in navigable waters for extended periods of time can interfere with navigation.
A provincial ministry also suggested that Transport Canada’s internal policies respecting decisions made under the CNWA should be publicly available and used consistently.
Some provincial ministries further suggested that the process for adding a body of water to the Schedule of the CNWA should be reviewed. One ministry suggested that the process should be more restrictive, while another believed it should be broader to allow the inclusion of more navigable waters.
Multiple participants, including Indigenous Peoples, provincial ministries, and a port authority expressed a desire for more communication from Transport Canada when works are being built in their area.
Theme 8: Strengths and successes
Transport Canada received a number of comments from the mining and aquaculture industry, provincial ministries, and federal departments noting the excellent service they received from its Navigation Protection Program officers when reaching out with questions or to hold a discussion when they have issues or concerns. Transport Canada heard from some stakeholders that their relationship with the Navigation Protection Program has noticeably improved in recent years, and that they have found there is a willingness to engage in discussions and work together to address problems when they arise.
Next steps
The comments received from written submissions and through our virtual and in-person engagements have been recorded and will be analyzed as Transport Canada develops the final report containing its findings and recommendations. It should be noted that although all feedback will be analyzed, some issues that were raised are outside of the scope of the report and not all suggestions received would be feasible to implement, and therefore they may not be reflected in the recommendations contained in the final report.
Once approved by the Minister of Transport, the report will be tabled in Parliament in early fall 2024, and then posted online.