The Power of Perspectives

The Canadian Bar Association

Kim Covert

Navigating changes to the Navigable Waters Protection Act

February 6 2017 6 February 2017

 

As part of its broader review of environmental and regulatory processes, the federal government is looking at changes to the Navigable Waters Protection Act that came into effect in 2014, and asking the Canadian public for input.

“The Government of Canada has promised to review the recent changes to the Navigable Waters Protection Act, restore lost protections and incorporate modern safeguards,” the government says on the consultation website.

The CBA’s Maritime Law Section, which responded to the online consultation questions in December, says it does not believe additional protections are needed under the Act.

“The Section does, however, believe that existing protections should apply to all navigable waters,” it adds (emphasis in original).

“The Section recommends that the Act should continue to apply to all navigable waters with respect to obstructions and prohibited activities in order to effectively protect navigation safety in Canada’s waterways.”

The authorization process under the Act is sufficiently clear and streamlined, it says in response to another question, but “because there is no requirement that a proponent advertise a proposed project, there is an argument that the transparency of the process is not being observed. The public may not be aware of a project until it has been commenced.”

According to the Act, the Minister must consider a number of factors when adding navigable waters to those listed in the Schedule to the Act, including whether the addition is

a. in the national or regional economic interest;

b. is in the public interest; or

c. was requested by a local authority.

The Section says factors “a” and “c” should both be assessed in relation to “b.”

“In other words, there should be more required than a request from a ‘local authority’ before a navigable water is added to the Schedule – the addition should also be in the public interest. Similarly, factor ‘a,’ the requirement for a national or regional economic interest, should also be considered in light of broader public interest ‘b’.”

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