Vol. 150, No. 21 — October 19, 2016

Registration

SOR/2016-269 October 7, 2016

NAVIGATION PROTECTION ACT

Regulations Amending the Schedule to the Navigation Protection Act

P.C. 2016-865 October 7, 2016

Whereas, pursuant to subsection 29(2) (see footnote a) of the Navigation Protection Act (see footnote b), the Governor in Council is satisfied that the addition to the schedule to that Act of the references to navigable waters set out in the annexed Regulations is in the regional economic interest or is in the public interest;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to subsection 29(2) (see footnote c) of the Navigation Protection Act (see footnote d), makes the annexed Regulations Amending the Schedule to the Navigation Protection Act.

Regulations Amending the Schedule to the Navigation Protection Act

Amendment

1 Part 2 of the schedule to the Navigation Protection Act (see footnote 1) is amended by adding the following in numerical order:

Item

Column 1


Name

Column 2

Approximate Downstream Point

Column 3

Approximate Upstream Point

Column 4


Description

63

Nass River

54°59′06.45″ N, 129°43′06.85″ W

56°09′52.19″ N, 129°01′41.06″ W

From the confluence with the Bell-Irving River to the Pacific Ocean

64

Nottawasaga River

44°32′18.94″ N, 80°00′28.24″ W

44°08′17.76″ N, 79°48′38.38″ W

From 13th Line Bridge to Lake Huron

Coming into Force

2 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Since the Navigation Protection Act (NPA) came into force, Transport Canada (TC) has received four requests from seven municipalities and local authorities in Ontario to add the Nottawasaga River, in Ontario (Simcoe County and Dufferin County), to the schedule of the NPA. The local authorities have raised concerns that this busy recreational waterway needs to be under the NPA in order to protect motorized and non-motorized recreational navigation.

In addition, the Nisga’a Lisims government (the Nisga’a government) has requested that the Nass River, in British Columbia, be added to the schedule of the NPA. The Nisga’a government has identified the Nass River as its people’s most vital transportation corridor and has indicated that any interference to navigation on the waterway would be severely detrimental to its citizens.

Background

The public right of navigation — the right to free and unobstructed passage over navigable waters — has long been recognized in law and can only be modified or extinguished by an authorizing statute. The Navigable Waters Protection Act (NWPA) was one of Canada’s oldest pieces of legislation, dating back to 1882. The purpose of the NWPA was to authorize interferences with the public right of navigation, such as the construction of bridges, breakwaters and dams, and to ensure obstructions to navigation were marked or removed for navigation safety. The intent was to allow economic development while preserving safe navigation.

On April 1, 2014, amendments to the NWPA came into force and the Act was renamed the Navigation Protection Act. Like the NWPA, the NPA continues to regulate works (e.g. bridges, dams) and obstructions that risk interfering with navigation. The principle change is that the NPA is now focused on Canada’s busiest commercial and recreation-related waterways (the navigable waters listed in the schedule), whereas the NWPA applied to all navigable waterways in Canada. The list of navigable waters in the schedule includes the 162 busiest waterways in Canada (97 rivers, 3 oceans and 62 lakes). These busy navigable waters support commercial or recreation-related navigation, are accessible by ports and marinas and are often close to heavily populated areas.

Waterways can be added or removed from the schedule through regulation. Subsection 29(2) of the NPA provides that the Governor in Council may, by regulation, amend the schedule by adding to it a reference to a navigable water if the Governor in Council is satisfied that the addition

The amendments made to the NWPA are expected to be reviewed by a parliamentary committee in the fall of 2016. Proponents for the addition of the Nass and Nottawasaga rivers have strongly advocated for a quick resolution to the issue rather than waiting for the results of this review.

Objectives

The Regulations add the Nottawasaga River and the Nass River to the NPA schedule.

Description

The Regulations add the Nottawasaga River, in Ontario, and the Nass River, in British Columbia, to the NPA’s list of navigable waters, along with their coordinates and a short description of their geographic location.

“One-for-One” Rule

The change to the NPA schedule does not create an administrative burden cost; therefore, the “One-for-One” Rule does not apply.

Small business lens

The small business lens does not apply, as these amendments do not impose costs on small businesses.

Consultation

Transport Canada has published information on its Web site regarding the addition of waterways to the schedule. TC also held various information sessions and engaged the provinces, municipalities and stakeholders, including the Canadian Dam Association, the Aquaculture Association of Canada, and the Transportation Association of Canada. In addition, further outreach was conducted with the Canadian Marine Advisory Council, which included representation from various boating associations and recreational waterway users.

Between February and May 2014, seven municipalities (Essa, Clearview, Melanethon, Mono, Oro-Medonte, Springwater and Wasaga Beach) as well as Simcoe County and the Nottawasaga Valley Conservation Authority passed motions requesting the addition of the Nottawasaga River to the NPA schedule. These motions were discussed at town hall meetings, where consultation with the general public took place. In addition, over 600 signatures were collected through a petition requesting the addition of the Nottawasaga River to the schedule.

The Nisga’a government has advised the Minister of Transport that it has the support of its members in making the request to add the Nass River to the schedule. A meeting also took place on March 20, 2015, between the Nisga’a government and various federal government officials, where this issue was raised and debated.

In both instances, TC has documented the local support for adding these waterways over the course of 18 months. TC has not received any opposition regarding the addition of these waterways to the schedule, and no negative impacts have been identified.

No other request to add waterways has been presented by local authorities.

The proposed Regulations were published in the Canada Gazette, Part I, on July 16, 2016, followed by a 30-day comment period to provide interested persons with the opportunity to make comments. In addition, letters were sent to the Ontario Ministry of Transportation, the British Columbia Ministry of Transportation and Infrastructure, the Nisga’a government, the Township of Clearview, the Township of Essa and the Nottawasaga Valley Conservation Authority informing them of the proposed Regulations and the opportunity to comment.

The only comment received was from the Nisga’a government who were pleased with the addition of the Nass River to the NPA schedule.

Rationale

The selection of waterways for inclusion on the schedule was based on quantitative elements (nautical charts, statistical information related to freight movement, etc.) and qualitative analysis (historical importance of the waterways, local knowledge, etc.).

Transport Canada has reviewed the requests and believes that the two waterways in question share many of the characteristics of the waterways currently on the schedule. The inclusion of both waterways also ensures greater navigation safety, as works being proposed will be reviewed under the NPA regime to determine their impacts on navigation and to ensure that the appropriate mitigation measures are included in the terms and conditions of projects.

Nass River

The Nisga’a government asked Transport Canada to reapply the original methodology used to select waterways for addition to the schedule, as it believes there was an error in assessing the Nass River. TC has concluded that there was no mistake made on the quantitative assessment, but that the Nass River met the qualitative criteria used for including other similar waterways in British Columbia. The Nass River is an important waterway for the Nisga’a for fishing (steelhead and salmon) as well as cultural and traditional activities. These elements warrant its addition to the schedule.

Nottawasaga River

There has been strong stakeholder support for adding the Nottawasaga River to the schedule, including endorsements from seven municipalities. The Nottawasaga River is part of the Great Lakes Basin and is a tributary of Lake Huron. It is an important waterway for recreational activities. The reasons put forward by the local authorities for the inclusion of the Nottawasaga River are to ensure that any works under consideration for this busy recreational waterway protect motorized and non-motorized recreational and navigational boating. The Nottawasaga River was overlooked as a busy recreational waterway that contributes to the regional economic interest of Simcoe and Dufferin counties. It is an economic driver for tourism, fishing, boating, cottaging, hospitality and recreation in the region. These elements warrant its addition to the schedule.

The addition of these waterways will have a limited financial impact on owners of works. They will be required to submit a notice to the Minister informing him of their intent to build, and to obtain the proper authorizations to do so. Currently, stakeholders planning to build on either the Nass or the Nottawasaga rivers have to use their own means to ensure the protection of the public right of navigation. Outside of the NPA regime, owners of works are on their own if challenged in court because their work has infringed on the public right of navigation. Litigation is an onerous and costly process for both the complainant and the owner of the work. Approved works under the NPA receive assurance from Transport Canada that the work’s impacts and risks to navigation have been addressed.

Implementation, enforcement and service standards

The NPA includes enforcement provisions that allow the Minister to order any owner of works to repair, alter or remove a work that is a danger to navigation.

Contact

Nancy Harris
Executive Director
Regulatory Stewardship and Aboriginal Affairs
Transport Canada
Place de Ville, Tower C
330 Sparks Street, 18th Floor
Ottawa, Ontario
K1A 0N5
Telephone: 613-990-0318
Email: NPPHQ-PPNAC@tc.gc.ca