Transport Canada, Navigable Waters Protection Division
A public right of navigation exists in Canada. This right is not written anywhere; it is a Common Law right. If the waters are navigable, then the public has the right to navigate. This right can only be restricted by an Act of Parliament. The NWPA is one of these Acts. It ensures a balance between the public right of navigation and the need to build works, such as bridges, dams or docks for example, in navigable waters. The NWPA provides for the prohibition to build works in navigable waters, unless the work, its site and plans have been approved by the Minister of Transport on such terms and conditions as he deems fit. (from the NWPA website)
About the Navigable Waters Protection Division
The Transport Canada, Navigable Waters Protection Division (TC NWPD) is responsible under the provisions of the Navigable Waters Protection Act for ensuring unimpeded navigation along navigable water. “Navigable water” is defined in the Act as any waterbody, natural or man made, capable of carrying a water borne vessel. This includes waters capable of being used for commerce, transportation or recreation and there is no limit on the size of stream considered navigable. TC NWPD determines if the waterway or waterbody potentially affected by the work is navigable.
If the waterway or waterbody is considered navigable, works that will affect it require the approval of the Minister of Transport, Infrastructure and Communities. Transport Canada’s guide to applying for this approval.
When reviewing a permit application, the Minister will consider clearance provisions and safety appurtenances pursuant to Section 5(1a) of the Navigable Waters Protection Act. Under the Canadian Environmental Assessment Act, section 5, an assessment of the environmental impacts of any development affecting navigable waters must be conducted by the proponent and screened by the Canadian TC NWPD.
The Process for Ministry of Transportation and Infrastructure Projects
If a waterbody that will be affected is considered navigable, MoT must apply to TC NWPD for approval to undertake the project. For most projects, the application for approval is submitted in the detailed design stage by the MoT’s Rail, Navigable Waters Coordinator (RNW Coordinator). A consultant may prepare and submit the application package on behalf of the Ministry but it must first be reviewed by the RNW Coordinator. For DBFO projects, the concessionaire prepares and submits the application. Normally, the approval process takes about 6 months.
If a waterbody that will be affected is considered to be marginal for navigation then a review will take place by the RNW Coordinator, in association with the TC NWPD and any Port Authorities or other authority having jurisdictional responsibilities for the Navigable Waters Protection Act. To facilitate the review, the Project Manager (or designer) will provide the RNW Coordinator with relevant information about the waterway such as: latitude and longitude or UTM coordinates, google earth image or air photo, photos of the site and any nearby obstructions to navigation, conceptual designs, and hydraulic information.
If the waterbody is not considered navigable, project design and construction can proceed without further involvement of the Rail, Navigable Waters Coordinator (RNW Coordinator) or involvement of the TC NWPD.
For waters that are considered navigable, if the proposed work involves the reconstruction of a previously approved structure, but does not alter the physical dimension of the navigable channel, a full application to the TC NWPD may not be required. However, in all applications, the TC NWPD will not provide approval until satisfied with clearances, span arrangements, navigation aids and assessment of potential environmental effects.
As soon as the general details of the work are known, a general layout drawing entitled NWPA Application Layout is prepared by MoT or the design consultant. This drawing must be prepared in accordance with MoT and TC NWPD requirements and deposited in the Land Register office or the Local Government Agent office. This application procedure requires an advertisement be placed in the Canada Gazette and two local papers.
The RNW Coordinator is responsible for completing the referral process outlined in the Navigable Waters Protection Act, including liaison with the TC NWPD about project clearance provisions and safety appurtenances. The RNW Coordinator, will liaise with the TC NWPD, Port Authorities and known mariners, as required, regarding process requirements for temporary works, facilities and equipment that may be present in any navigable area or works that require temporary alteration to the operation of a moveable span.
The RNW Coordinator will contact project management personnel about project environmental issues and/or completion of the “Environmental Information Sheet”. Environmental reports, studies and correspondence should be forwarded to the RNW Coordinator for inclusion in the application.
The following procedures have been developed by MoT to ensure that the environmental component of the proposed work satisfies the Ministry’s environmental standards and also complies with Section 5(1) of the Navigable Waters Protection Act:
- Review engineering reports and plans of the proposed structure for environmental implications and impacts, in association with environmental agencies if applicable.
- Ensure that environmental considerations have been correctly incorporated in the NWPA Application Layout drawing prepared by MoT or the design consultant for submission to the TC NWPD.
- Complete the environmental assessment component of the NWPA application, if required, in association with the RNW Coordinator. The environmental assessment component includes:
- description and purpose of the work;
- identification of the construction activities, type of equipment to be used during construction, and harmful substances to be utilized in the project;
- identification of environmental sensitivities during construction, operation and maintenance;
- reference to environmental studies that have been undertaken for the project; and
- description of the construction schedule.
- Attach environmental agency approvals (Fisheries and Oceans Canada and Ministry of Environment, Lands and Parks) for the project. If environmental approvals are pending, note that approvals will be forwarded when received.
- Attach relevant environmental reports and an environmental contact list for the project; and
- Send the complete package to the RNW Coordinator for inclusion in the application to the TC NWPD.
Transport Canada, Navigable Waters Protection Program
Navigable Waters Protection Division – Pacific Region
Navigable Waters Protection Act – N-22 and Regulations
Navigable Waters Protection Act – Application Guide
Navigable Waters Protection Act Approval — Application and Site Marking Requirements
Navigable Waters Protection Act Approval — Application Form Contact Information