On Thursday, October 18, 2012, for the second time this year, the Canadian government introduced a budget bill amending a number of laws in the House of Commons.
The new bill comes in the wake of omnibus Bill C-38 introduced last spring which, for its part, amended some 60 federal laws. Bill C-38 had an impact on Canadian environmental legislation, among others, in that it replaced the Canadian Environmental Assessment Act and amended a number of environmental laws such as the Fisheries Act, the Species at Risk Act, the Kyoto Protocol Implementation Act and the National Round Table on the Environment and the Economy Act, to name but a few.
Amendments in Bill C-45
Bill C-45 seeks to amend the Navigable Waters Protection Act, commencing by giving it a new name − the Navigation Protection Act.
The Navigable Waters Protection Act, one of the country's oldest pieces of legislation, adopted in 1882, will be amended to reduce its scope. Essentially, the government will limit the application of the new law to the three oceans flanking the Canadian borders as well as 97 lakes and 62 rivers that have been qualified as important commercial and recreational water courses. The building of works on any body of water not mentioned in Schedule 2 of the new legislation will no longer be governed by federal law.
The current law gives the Minister of Transport the power to authorize (or not authorize) the construction, installation or maintenance of work undertaken across, over, in or under any navigable water. Navigable waters throughout the country were subject to the federal government's authority. Consequently, any construction, installation or maintenance of a work on a body of water considered to be navigable and floatable, whether pertaining to a simple stream or an ocean, has been subject to the approval of the Minister of Transport.
The Navigable Waters Protection Act was already amended in part under Bill C-38 last spring by exempting pipelines and power lines, among other things, from the provisions of the law.
The new legislation is deemed to apply to certain works in other navigable waters that are not otherwise subject to the new law, with the approval of the Minister of Transport. In the case of works that have major repercussions on navigation, the new legislation provides for a works assessment process as well as ministerial approval. The law also provides for administrative monetary penalties and new offences, and makes correlative amendments to other ancillary legislation.
Repercussions
The federal Minister of Transport, Infrastructure and Communities, the Honourable Denis Lebel, claims that this legislative reform is a measure based on efficiency. He believes that the exemption placed on smaller bodies of water will increase project development capacity without adversely affecting environmental protection.
Moreover, it should be noted that the Navigation Protection Act only concerns navigation. Other authorizations, for example relating to the environment, may still be needed to build major projects that involve water bodies.
Provinces and municipalities may attempt to legislate or regulate the protection of the bodies of water excluded from the new law, while respecting the jurisdiction of each level of government. However, limited financial resources at the provincial or local level may make this a challenge.
Learn more about Bill C-45 on the Parliament of Canada's website.
For a review of Bill C-38, please refer to our bulletins dated July 20, 2012.
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