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 (S.C. 2019, c. 28)

Marginal note:For greater certainty — navigable water

2.01 For greater certainty, the definition navigable water in section 2 does not include artificial irrigation channels or drainage ditches.

Indigenous Peoples of Canada

Marginal note:Rights of Indigenous peoples of Canada

2.2 For greater certainty, nothing in this Act is to be construed as abrogating or derogating from the protection provided for the rights of the Indigenous peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.

Marginal note:Duty of Decision Maker

2.3 When making a decision under this Act, the Minister must consider any adverse effects that the decision may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.

Prohibition

Marginal note:Works

3 Except in accordance with this Act, it is prohibited to construct, place, alter, rebuild, remove or decommission a work in, on, over, under, through or across any navigable water.

Minor Works in any Navigable Water

Marginal note:Minor works

• 4 (1) An owner of a minor work may construct, place, alter, rebuild, remove or decommission the minor work in, on, over, under, through or across any navigable water in accordance with the requirements under this Act.

• Marginal note:Repair, maintenance, operation and use

  (2) The owner must repair, maintain, operate and use the minor work in accordance with the requirements under this Act.

Major Works in any Navigable Water and Works in Navigable Waters Listed in Schedule

Marginal note:Notice

4.1 An owner who proposes to construct, place, alter, rebuild, remove or decommission one of the following works may do so if the work, or its construction, placement, alteration, rebuilding, removal or decommissioning, would not interfere with navigation and the owner, before beginning the construction, placement, alteration, rebuilding, removal or decommissioning, deposits any information specified by the Minister in any place specified by the Minister and publishes a notice in any manner, and including any information, specified by the Minister:

• (a) a major work in, on, over, under, through or across any navigable water; or

• (b) a work — other than a minor work — in, on, over, under, through or across any navigable water that is listed in the schedule.

Marginal note:Application for approval

• 5 (1) An owner who proposes to construct, place, alter, rebuild, remove or decommission one of the following works must make an application for an approval to the Minister — in the form and manner, and containing the information, specified by the Minister — if the work, or its construction, placement, alteration, rebuilding, removal or decommissioning, may interfere with navigation:

  • (a) a major work in, on, over, under, through or across any navigable water; or

  • (b) a work — other than a minor work — in, on, over, under, through or across any navigable water that is listed in the schedule.

• Marginal note:Related works

  (2) If the Minister is of the opinion that two or more works are related, the Minister may consider them to be a single work.

• Marginal note:Additional information

  (3) For the purpose of determining whether the work or its construction, placement, alteration, rebuilding, removal or decommissioning may interfere with navigation, the Minister may require from the owner any additional information that the Minister considers appropriate.

Marginal note:No interference with navigation

6 If the Minister is of the opinion that a work that is the subject of an application made under subsection 5(1), or its construction, placement, alteration, rebuilding, removal or decommissioning, would not interfere with navigation, including by changing the water level or water flow of a navigable water, he or she must inform the owner, in writing, of that opinion and no approval is required under subsection 7(6) for that work — or its construction, placement, alteration, rebuilding, removal or decommissioning.

Marginal note:Interference with navigation

• 7 (1) If the Minister is of the opinion that a work that is the subject of an application made under subsection 5(1), or its construction, placement, alteration, rebuilding, removal or decommissioning, may interfere with navigation, including by changing the water level or water flow of a navigable water, he or she must inform the owner, in writing, of that opinion and the owner may only construct, place, alter, rebuild, remove or decommission that work if the Minister issues an approval for the work.

• Marginal note:Information

  (2) The owner must deposit any information specified by the Minister in any place specified by the Minister.

• Marginal note:Notice

  (3) The owner must publish a notice containing any information specified by the Minister in any manner specified by the Minister.

• Marginal note:Comment period

  (4) The notice referred to in subsection (3) must invite interested persons to provide written comments on the owner’s proposal to the Minister within 30 days after publication of the notice or within any other period specified by the Minister.

• Marginal note:Exemption

  (5) If the Minister is satisfied that the owner has already deposited sufficient information in a place specified by the Minister or published a sufficient notice, the Minister may exempt the owner from the application of subsection (2) or (3), as the case may be.

• Marginal note:Approval

  (6) The Minister may issue an approval for the work, including its site and plans, if he or she considers it appropriate in the circumstances.

• Marginal note:Assessment — factors

  (7) In determining whether to issue the approval, the Minister must consider the following:

  • (a) the characteristics of the navigable water in question;

  • (b) the safety of navigation in that navigable water;

  • (c) the current or anticipated navigation in that navigable water;

  • (d) the impact of the work on navigation, including as a result of its construction, placement, alteration, rebuilding, removal, decommissioning, repair, maintenance, operation or use;

  • (e) the impact of the work, in combination with other works, on navigation, if the Minister is provided with, or has in his or her possession, information relating to that cumulative impact;

  • (f) any Indigenous knowledge that has been provided to the Minister;

  • (g) any comments that he or she receives from interested persons within the period provided for under subsection (4);

  • (h) the record of compliance of the owner under this Act; and

  • (i) any other information or factor that he or she considers relevant.

• Marginal note:Additional information

  (8) For the purpose of determining whether to issue the approval, the Minister may require from the owner any additional information that the Minister considers appropriate.

• Marginal note:Terms and conditions

  (9) The Minister may attach any term or condition that he or she considers appropriate to an approval including one that requires the owner to

  • (a) maintain the water level or water flow necessary for navigation purposes in a navigable water; or

  • (b) give security in the form of a letter of credit, guarantee, suretyship or indemnity bond or insurance or in any other form that is satisfactory to the Minister.

• Marginal note:Effect of approval

  (10) An approval issued under this section in relation to a work replaces any approval previously issued in relation to that work.

• Marginal note:Contiguous area

  (11) The Minister may, in an approval, designate an area contiguous to a work that is necessary for the safety of persons and navigation and, for the purposes of the approval, that area is considered to be part of the work.

• Marginal note:Compliance with requirements

  (12) The owner must comply with the approval and maintain, operate and use the work in accordance with the requirements under this Act.

• Marginal note:Approval after activity begins

  (13) The Minister may, if he or she considers that it is justified in the circumstances, approve the construction, placement, alteration, rebuilding, removal or decommissioning of a work after the construction, placement, alteration, rebuilding, removal or decommissioning begins or is completed.

Marginal note:Transfer

8 If the ownership of a work to which an approval relates is transferred, the transferor and the transferee must immediately give written notice of the transfer to the Minister, in the form and manner, and containing the information, specified by the Minister.

Marginal note:Amendment of approval

• 9 (1) The Minister may amend an approval by amending or revoking any term or condition of the approval.

• Marginal note:Amendment resulting from order

  (2) The Minister may otherwise amend the approval, including by adding terms and conditions, to reflect any changes to the work resulting from an order made under section 11 or 13.

• Marginal note:Other amendments

  (3) The Minister may otherwise amend the approval, including by adding terms and conditions, if he or she considers that

  • (a) the work that is the subject of the approval interferes more with navigation at the time in question than it did when the approval was issued;

  • (b) the work causes or is likely to cause a serious and imminent danger to navigation;

  • (c) the amendment of the approval is in the public interest; or

  • (d) the owner consents to the amendment.

• Marginal note:Suspension or cancellation

  (4) The Minister may suspend or cancel an approval if he or she considers that

  • (a) the owner has not complied with the approval;

  • (b) the approval was obtained by a fraudulent or improper means or by the misrepresentation of a material fact;

  • (c) the owner has not paid a fine or penalty imposed under this Act;

  • (d) the owner has contravened this Act; or

  • (e) the suspension or cancellation is in the public interest, including by reason of the record of compliance of the owner under this Act.

• Marginal note:Notice

  (5) The Minister must give the owner 30 days’ notice setting out the grounds on which the Minister relies for the amendment, except in the case of an amendment made under subsection (2) or paragraph (3)(b), suspension or cancellation of the approval of a work if he or she is amending it without the owner’s consent or suspending or cancelling it.

Works in Navigable Waters not Listed in Schedule

Marginal note:Notice

9.1 An owner who proposes to construct, place, alter, rebuild, remove or decommission a work — other than a major work or a minor work — in, on, over, under, through or across any navigable water that is not listed in the schedule may do so if

• (a) the work, or its construction, placement, alteration, rebuilding, removal or decommissioning, would not interfere with navigation; and

• (b) before beginning the construction, placement, alteration, rebuilding, removal or decommissioning, the owner deposits any information specified by the Minister in any place specified by the Minister and publishes a notice in any manner, and including any information, specified by the Minister.

Marginal note:Application or notice

• 10 (1) An owner who proposes to construct, place, alter, rebuild, remove or decommission a work — other than a major work or a minor work — in, on, over, under, through or across any navigable water that is not listed in the schedule must take one of the following steps if the work, or its construction, placement, alteration, rebuilding, removal or decommissioning, may interfere with navigation:

  • (a) make an application for an approval to the Minister, in the form and manner, and containing the information, specified by the Minister; or

  • (b) deposit any information specified by the Minister in any place specified by the Minister and publish a notice in any manner, and including any information, specified by the Minister.

• Marginal note:Deeming

  (2) An application made under paragraph (1)(a) is deemed to be an application made under subsection 5(1) and, if an approval is issued under subsection 7(6) in respect of the application, the work to which the approval relates is deemed to be a work constructed or placed in, on, over, under, through or across a navigable water that is listed in the schedule.

• Marginal note:Comment period

  (3) The notice referred to in paragraph (1)(b) must invite interested persons to provide written comments on the proposal, as it relates to navigation, to the owner within 30 days after publication of the notice or within any other period prescribed by regulation.

Marginal note:Attempt to resolve

• 10.1 (1) If a comment that is provided to an owner under subsection 10(3) expresses a concern relating to navigation, the owner and the person who made the comment must attempt to resolve the person’s concern within 45 days after the end of the period set out in that subsection or within any other period prescribed by regulation.

• Marginal note:Change to proposal

  (2) If, as a result of an attempt to resolve a concern under subsection (1), the owner makes a material change to the proposal, he or she must deposit the new information and publish a new notice, in accordance with paragraph 10(1)(b).

• Marginal note:Request to Minister

  (3) If the concern is not resolved within the period referred to in subsection (1), the person who made the comment may, within 15 days after the end of that period or within any other period prescribed by regulation, make a request to the Minister — in the form and manner, and containing the information, specified by the Minister — for a decision on whether the owner is required to apply for an approval in relation to the work.

• Marginal note:Decision by Minister

  (4) On receipt of a request under subsection (3), the Minister may decide that the owner is required to apply for an approval in relation to the work.

• Marginal note:Additional information

  (5) For the purpose of deciding whether to require an application for an approval under subsection (4), the Minister may require from the owner any additional information that the Minister considers appropriate.

• Marginal note:Notice

  (6) The Minister must inform the owner and the person who made the request of his or her decision.

Marginal note:Work may commence

• 10.2 (1) An owner who publishes a notice referred to in paragraph 10(1)(b) may only construct, place, alter, rebuild, remove or decommission the work

  • (a) if no comments are provided to the owner, or if comments are provided to the owner but no concerns relating to navigation are expressed in those comments, after the day on which the comment period ends;

  • (b) if comments are provided to the owner and concerns relating to navigation are expressed in those comments but all such concerns are resolved, after the later of

    • (i) the day on which the comment period ends, and

    • (ii) the day on which all the concerns are resolved; or

  • (c) if comments are provided to the owner and those comments express concerns relating to navigation but any such concern remains unresolved and

    • (i) no request is made under subsection 10.1(3), after the day on which the period referred to in that subsection ends, or

    • (ii) a request is made under subsection 10.1(3) and

      • (A) the Minister decides that the owner is not required to apply for an approval in relation to the work, after the day on which the owner receives notice of that decision, or

      • (B) the Minister decides that the owner is required to apply for an approval in relation to the work, after the day on which the approval is issued or, if it is later, the day set out in the approval.

• Marginal note:Prohibition

  (2) Despite subsection (1), an owner is prohibited from constructing, placing, altering, rebuilding, removing or decommissioning a work that extinguishes navigation for vessels of any class that navigate, or are likely to navigate, the navigable water in question.

• Marginal note:Change

  (3) For greater certainty, if, at any time, an owner referred to in subsection (1) makes a material change to the work or to the method of its construction, placement, alteration, rebuilding, removal or decommissioning, the owner must either make an application under paragraph 10(1)(a) or deposit new information and publish a new notice in accordance with paragraph 10(1)(b).

Owner’s Duty

Marginal note:Notification

• 10.3 (1) An owner of a work in, on, over, under, through or across any navigable water must immediately notify the Minister if the work, or its construction, placement, alteration, rebuilding, removal or decommissioning, causes or is likely to cause a serious and imminent danger to navigation.

• Marginal note:Duty

  (2) The owner must, as soon as feasible, take all reasonable measures consistent with public safety and with the safety of navigation to prevent any serious and imminent danger to navigation that is caused or likely to be caused by the work, or its construction, placement, alteration, rebuilding, removal or decommissioning, or to counteract, mitigate or remedy any adverse effects that result from that danger to navigation or might reasonably be expected to result from it.

Minister’s Powers

Marginal note:Emergency

• 10.4 (1) Even if the application referred to in subsection 5(1) or paragraph 10(1)(a) has not yet been made, or the notice referred to in paragraph 10(1)(b) has not yet been published, the Minister may authorize, subject to any terms or conditions that he or she considers appropriate, the construction, placement, alteration, rebuilding, removal or decommissioning of a work — other than a minor work — in, on, over, under, through or across any navigable water if the Minister is of the opinion that it must be carried out immediately in order to respond to

  • (a) a matter of national security;

  • (b) a national emergency in respect of which special temporary measures are being taken under the Emergencies Act; or

  • (c) an emergency that

    • (i) poses a risk to public health, safety, the environment or property, or

    • (ii) threatens to cause social disruption or a breakdown in the flow of essential goods, services or resources.

• Marginal note:Approval

  (2) The Minister may issue an approval for a work authorized under subsection (1), including its site and plans, if he or she considers it appropriate in the circumstances.