Recently, the Government of Canada tabled bills C-68 (An Act to amend the Fisheries Act and other Acts in consequence) and C-69 (An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts), which propose changes to several pieces of legislation that impact Canada’s environmental regulatory regime. Included in Bill C-68 are proposed changes to the Fisheries Act, while Bill C-69 proposes changes to the Navigation Protection Act. As both acts impact the process by which AAMDC members construct and maintain bridges and other structures that cross or enters water bodies, the AAMDC has been an active participant in providing feedback to the federal government during changes to both acts in recent years, and will ensure that the rural municipal voice is heard as to the impacts of bills C-68 and C-69. The AAMDC has not yet completed a detailed analysis of the bills or their potential impacts on rural municipalities. This bulletin provides a high-level overview of proposed changes to the Navigation Protection Act and Fisheries Act, with more information to follow.
Navigation Protection Act (NPA)
The NPA is intended to support the navigation of Canada’s lakes, rivers, and water bodies by ensuring that no “works” (bridges, docks, etc.) built on or across water bodies impact navigation. Prior to 2009, the NPA (then known as the Navigable Waters Protection Act) was relatively prescriptive in nature, and required those constructing or making changes to meet labor-intensive regulatory requirements even if their projects crossed water bodies with no current or potential navigation activity.
Amendments in 2009 and 2012 lessened the scope of the Act (and renamed it as the NPA), narrowing the regulatory focus to water bodies likely to support navigation and to “major” works, likely to have an impact on navigation. Minor works and those on less navigable bodies of water were still addressed through the Act, but greater responsibilities were placed on the owner of the works to ensure that navigation would not be impacted, and the up-front federal role in approving such projects was lessened.
Bill C-69 proposes changes to the Navigation Protection Act, including renaming it to the Canadian Navigable Waters Act (CNWA). The CNWA would expand the NPA in the following ways:
- Expansion of existing requirements to seek approvals for works in or across navigable waters, covering more navigable waters and more types of works
- Under the current NPA, the majority of regulatory requirements apply only on water bodies specifically listed in the schedule to the Act.
- Under the proposed CNWA, the definition of navigable waters will expand to include any body of water that is used or is reasonably likely to be used by vessels as a means of commercial or recreational transport, or by Indigenous peoples exercising their Indigenous rights, or any body of water where there is public access (by land or water), where there are two or more waterfront owners, or where the Crown is the sole waterfront owner.
- Additional protections for waterways of significance to Indigenous peoples, and the express requirement to consider adverse effects on the rights of Indigenous peoples
- Increased transparency requirements for any project that may interfere with navigation
- Opportunities for community members to comment on proposed works
- Requirement for proponents to make efforts to resolve issues raised before an authorization is given
- The Minister will be empowered to consider additional factors when reviewing an approval request, including:
- The impact of the proposed work on navigation when combined with existing works
- Traditional knowledge of Indigenous people in relation to the water body that has been provided to the Minister
- Public input
- Compliance record of the owner of the works
- The Minister will have enhanced enforcement powers
Fisheries Act
The Fisheries Act is intended to protect Canada’s fish habitats. The Act includes regulatory requirements that must be met prior to the construction or modification of works that may impact fish habitats. Prior to 2012, the Fisheries Act was quite broad in scope and required municipalities to complete costly fish habitat impact assessments prior to activities on water bodies with no known fish habitats. Due to the broad scope of the regulation, municipalities not only faced high costs to conduct assessments on water bodies with no fish habitat, but also faced long delays as Fisheries and Oceans Canada consistently struggled to process the high volume of applications received due to the legislation’s broad scope.
Changes to the Fisheries Act in 2012 resulted in a regulatory regime that maintained fish habitat protection with a more practical scope in which local knowledge as to the presence of any fish activity was accepted as valid in contributing to the determination of whether federal oversight of a project and its impact on fish habitats was needed. The 2012 amendments reduced the administrative burden on both municipalities and Fisheries and Oceans Canada, and allowed municipalities to act as environmental stewards by having a larger role in determining whether a project may harm a fish habitat prior to proceeding through the federal regulatory process.
The proposed changes to the Fisheries Act under Bill C-68 restore certain federal protections and scope that existed Fisheries Act prior to 2012. Bill C-68 would expand the Fisheries Act in the following ways:
- Expand the definition of “fish habitat” to include any waters frequented by fish
- This expands on the definition in the current Fisheries Act, which focuses on “spawning grounds and any other areas, including nursery, rearing, food supply and migration areas, on which fish depend directly or indirectly in order to carry out their life processes.”
- Expansion of regulatory scope over a wider range of projects
- Bill C-68 introduces a “designated projects” category which expands the scope of the Act to any projects within that category, rather than only to projects that would cause specific harms to fish and fish habitat.
- The proposed regulation defining “designated projects” has not yet been released
- The establishment of a new system in which project proponents can create fish habitat banks, and receive credits to off-set a project’s adverse impacts on a local fish habitat.
- The Minister will be empowered to consider additional factors when reviewing an approval request, including:
- The economic impact of the fishery habitat that will be impacted by a project
- The cumulative effects of a proposed works in combination with existing works
- The proposed amendments include several provisions related to the rights of Indigenous peoples and utilization of traditional Indigenous knowledge
- The Minister will have enhanced enforcement powers
The AAMDC is in the process of fully analyzing the proposed changes to both acts. The AAMDC supports the need protect the navigation of Canada’s waterways, as well as fish habitats across the country. However, AAMDC members take their responsibilities as environmental stewards seriously, and any federal legislation regarding waterways should consider and respect the local knowledge that municipalities have about the activities and biological diversity of waterways within their boundaries. Balancing the need for consistent Canada-wide regulatory oversight with the utilization of local knowledge is critical to ensuring an effective and efficient regulatory process.
Enquiries can be addressed to:
Wyatt Skovron
Policy Analyst
780.955.4096
Tasha Blumenthal
Director, External Relations & Advocacy
780.955.4094