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
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.
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
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.
Directors and their corporations may be at a loss to understand what they must do to minimize their risk of environmental liability in light of the recent Ontario Ministry of Environment order and settlement agreement concerning Northstar Canada.
Earlier this week, two environmental groups, Wildlands League and Ontario Nature, were in the Court of Appeal for Ontario seeking to have struck down a 2013 regulation that significantly altered the regime for protecting species at risk in Ontario.