The Navigation Protection Act and pipelines: 6 things you should know

Earlier this year, the federal government launched a review of Canada’s environmental and regulatory processes. One of the processes being looked at is the Navigation Protection Act (NPA) – formerly known as the Navigable Waters Act.

Here are six key things to know about this Act, and why it’s being reviewed.

What is the act?
As a member of the public, you have the right to ‘free and unobstructed passage over navigable waters’, according to Transport Canada. The NPA authorizes and regulates interferences with this right, and also prohibits activities that may negatively impact navigation, like depositing materials in navigable waters.

According to Transport Canada, “Navigable water” is defined 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.

Why is it being reviewed now?
The NPA is being reviewed, in part, because it was amended by Transport Canada in 2012, and some stakeholders are concerned that the changes actually weakened environmental protection to our waterways.

The review will determine whether there are lost protections that should be reinstated, and modern safeguards that should be incorporated.

This current review gives the government an opportunity to fully consider the 2012 changes to NPA, hear views from all stakeholders, particularly First Nations, and determine how the changes are meeting the intent of the legislation.

Why was the Act changed in 2012?
Dating back over 130 years, the Navigable Waters Act was one of Canada’s oldest pieces of legislation. Unfortunately, it did have some redundancies and duplications, which the 2012 review helped to eliminate. The purpose of the review was to reduce duplication and inefficiencies, update the legislation and clarify its purpose.

The review helped to define responsibilities and eliminate some of those duplications – for instance, it ensures that the most qualified and specialized bodies are dealing with issues of navigation and environmental protection.

What does ‘navigable waters’ even mean?
Until it was amended, the Navigable Waters Act applied to virtually all bodies of water in Canada, from the St. Lawrence River to the smallest streams. That meant that a pipeline crossing a ditch in a farmer’s field, where clearly no navigation could take place, required a permit to ensure that it would not impact navigation.

A 2009 review  created a class of water (for instance those farmers’ ditches), and works that are pre-approved, and do not require authorization. This focused the scope of the Act from all waterways in Canada to a schedule, covering approximately 162 rivers, lakes and oceans.

Some groups, including First Nations groups, have suggested that there are ‘navigable’ waters that are not included in the schedule. This could be in part due to a lack of proper consultation with those groups during the review process. But the Minister of Transport does have the authority to amend the schedule, and to add lakes and rivers at any time.

Does it include environmental legislation?
The purpose of the Act has always been to protect navigation and ensure that the effects of construction or development projects on navigation are minimized.

Pipeline projects under review fall under the Canadian Environmental Assessment Act (CEAA) and the National Energy Board Act (NEBA). These Acts provide a process that considers the environmental impact of pipelines crossing water bodies.

What does this have to do with pipelines?
Transmission pipelines do cross bodies of water, as they deliver the energy Canadians use every day, and therefore are subject to following the Navigation Protection Act.  However, the effects to navigation and to the environment are typically temporary in nature.  Only in very unique circumstances will the effects of construction be permanent.

As a stakeholder in this process, CEPA hopes the review will:

  • Remain true to the purpose of the Act, which is to protect navigation
  • Avoid duplication with other agencies whose purpose it is to provide environmental assessment

If you would like to know more about how pipelines are built around waterways, check out these posts about horizontal directional drilling, wetlands, rivers and how pipeline companies protect fisheries,

Stay tuned for future blog posts where we will discuss other legislation that is also under review by Parliamentary Committees or Expert Panels – the Canadian Environmental Assessment Act 2012, the National Energy Board modernization, and the Fisheries Act.

 

The Canadian Energy Pipeline Association represents Canada’s transmission pipeline companies who operate approximately 119,000 kilometres of pipelines in Canada. In 2015, these energy highways moved approximately 1.2 billion barrels of liquid petroleum products and 5.4 trillion cubic feet of natural gas. Our members transport 97 per cent of Canada’s daily natural gas and onshore crude oil from producing regions to markets throughout North America.