dock construction

A media background briefing from Transport Canada earlier this month was damning in its assessment of the current state of the Navigable Waterways Protection Act and how it hinders the construction of bridges, docks, boathouses, pipelines, transmission lines and other forms of infrastructure in and around waterways.

Dating back to 1882, when waterways were Canada’s primary transportation routes, the law – which was devised to allow construction of works around waterways which would otherwise violated the common law right of navigation – is Canada’s oldest piece of legislation.

Over time, it expanded to apply to all waters that can float a canoe and some brooks and streams that are full for only a few weeks during the spring runoff.

As a result, much of what should have been straightforward construction has become bogged down in red tape. Approvals to build a culvert under a highway in Fox Creek – so small it is barely usable – were delayed by eight months. Despite already having met CSA standards for transmission line construction over navigable waters, a Hydro Quebec transmission line for Sacelle-Eastmain-1 took no less than 13 months to be approved. Transport Canada itself was obliged to process 80 applications with regard to Lake Wabamum near Edmonton over three years even though the lake has an oval shape which makes it easy for cottagers to build docks and boathouses without impacting navigation.

Such ‘pointless assessments’ the department says, not only waste time and many but also create a backlog that slows assessments in major waterways where commercial navigation is a real issue. Reforms to cut red tape are desperately needed.

Already, some improvements have started. Amendments in 2009 resulted in the Minor Works and Waters (NAPA) Order, which enables low risk works meeting certain criteria to be pre-approved under the Act.

dock construction

Last month, however, much broader changes were announced by the government. Under these changes:

  • The name of the law will be changed from the Navigable Waters Protection Act to the Navigation Protection Act to reflect its historic intent
  • The list of low risk works which can be pre-approved under the Act will be expanded
  • Approval for the placement or building of structures will only be required for major waterways which are specifically listed.
  • Unlisted waterways will be subject to common law, but builders will have the choice to ‘opt in’ and thus have the development covered by the Act should they feel the benefits of the legal certainty provided by the Act outweighs the costs of having to comply with the Act’s requirements, such as approval processes.

The new rules have been welcomed by the Canadian Construction Association, which says the legislation will help streamline processes and provide greater certainty for the industry.

However, not everyone is excited. Critics says the new laws will weaken protection for significant waterways, such as Alberta’s Muskeg River, and clear the way for proposals such as big pipelines and interprovincial power lines.

Such criticism appears misguided. The navigation law was designed to protect navigation, not the environment. Instead, the environment will continue to be protected by laws such as the Canadian Environmental Assessment Act 2012, the Canadian Environmental Protection Act, the Species at Risk Act, and the Fisheries Act.

By Andrew Heaton