Dear Members,
As part of the ongoing regulatory review, the BCMF Consultation Office has been asked to provide feedback on review and revision to the Navigation Protection Act (NPA Act), some of our strongest legislation for environmental protection. Please review the following information and provide your thoughts to bcmf@ksdandassociates.com with the heading “NPA Review” by January 20. Your input is valuable, and you will remain anonymous.
Navigation Protection Act Review:
In 2012, the federal government amended the Navigable Waters Protection Act, including by renaming it the Navigation Protection Act. Whereas the former Act applied to all navigable waters, these amendments concentrated the application of the Act on 162 of Canada’s busiest commercial and recreational navigable waterways (namely, oceans, lakes and rivers). The federal government is now undertaking a review of these amendments to the Act, and has promised to restore lost protections and incorporate modern safeguards under the Act.
The primary purpose of the Navigation Protection Act is to balance the public right to navigate with the need to construct works. Rather than applying to all navigable waters, the current Act includes a List of Scheduled Navigable Waters which sets out the navigable waters in respect of which people must apply for federal authorization for works that interfere with navigation. The waters included in the List are Canada’s busiest waterways which are accessible by ports and marinas and are often close to heavily populated areas. Any owner wanting to construct, place, alter, repair, rebuild, remove or decommission a work on a Scheduled Water must submit a Notice of Works. Owners may also choose to opt-in to the Act’s regime if their proposed works occur in non-navigable waters.
The Act deals with three main classes of works:
1. Approved works are works that are approved by the Minister of Transport after being assessed as likely to substantially interfere with navigation. For the purpose of the Act, likely to substantially interfere with navigation means that the work will, for example, significantly change the way vessels pass down a navigable waterway, or may make passage dangerous to the public.
2. Permitted works are works that may proceed without the Minister of Transport’s approval, after determination by the Minister that they do not substantially interfere with navigation. For the purposes of the Act, not likely to substantially interfere with navigation means that the work will, for example, not change a vessel’s passage in a significant way or make it more dangerous to navigate the waterway.
3. Designated works are works that may proceed without a Notice under the Act, as long as they comply with the requirements of the Act.
The Act also gives the Minister of Transport the authority to manage obstructions in Scheduled Waters. This includes wrecked vessels and other obstructions to navigation, and vessels left anchored, moored or adrift that obstruct or are likely to obstruct navigation.
Section 21 of the Act prohibits anyone from throwing or depositing any “(…) sawdust, edgings, slabs, bark or like rubbish of any description whatever that is liable to interfere with navigation in any water, any part of which is navigable or that flows into any navigable water.”
Section 22 also prohibits anyone from throwing or depositing any “(…) stone, gravel, earth, cinders, ashes or other material or rubbish that is liable to sink to the bottom in any water, any part of which is navigable or flows into any navigable water, where there is not a minimum depth of 36 metres of water at all times (…)”.
These prohibitions apply to all navigable waters, not just those listed on the List of Scheduled Navigable Waters.
Transport Canada applies a “navigability test” to determine for when a waterway is considered navigable and subject to the Act.
Questions to consider:
1. Which criteria do you believe should determine the navigable waters subject to the Navigation Protection Act?
2. Do you believe additional protections are needed under the Navigation Protection Act, and if so, why?
3. Is the authorization process under the Navigation Protection Act sufficiently streamlined, clear and transparent to the public?
4. Are the obstructions provisions in the Navigation Protection Act sufficient to protect navigation safety in Canada’s waterways?
5. Are the appropriate activities prohibited in the Navigation Protection Act in order to safeguard navigation?
6. Which navigable waters do you believe the Navigation Protection Act should apply to, and why?
More information can be found at the following link:
https://www.canada.ca/en/servi
Regards,
Kelly S. Davison, BCMF Consultation Director
Kelly S. Davison
Principal, Senior Indigenous Knowledge Professional
KSDavison & Associates (7726929 Canada Inc.)
Box 16073 RPO Sixth Street, New Westminster, BC, V3M 6W6
c: 778 789 6448 | e: kelly.davison@ksdandassociates.com
