The ''Canadian Navigable Waters Act'' (, formerly the ''Navigation Protection Act'' and beforehand the ''Navigable Waters Protection Act'') is one of the oldest regulatory statutes enacted by the

Parliament of Canada The Parliament of Canada () is the Canadian federalism, federal legislature of Canada. The Monarchy of Canada, Crown, along with two chambers: the Senate of Canada, Senate and the House of Commons of Canada, House of Commons, form the Bicameral ...

. It requires approval for any works that may affect navigation on

navigable waters A body of water, such as a river, canal or lake, is navigable if it is deep, wide and calm enough for a water vessel (e.g. boats) to pass safely. Navigability is also referred to in the broader context of a body of water having sufficient under ...

Canada Canada is a country in North America. Its Provinces and territories of Canada, ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, making it the world's List of coun ...

History

Following the decision of the

Judicial Committee of the Privy Council The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 August ...

in '' McLaren v. Caldwell'', the Parliament asserted its jurisdiction by enacting ''An Act respecting Bridges over the navigable waters, constructed under the authority of Provincial Acts'', which received

royal assent Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in othe ...

on 17 May 1882. Originally extending only to the construction of bridges, its scope was enlarged in 1883 to cover bridges, booms, dams and causeways, and in 1886 to cover wharves, docks, piers and other structures. These provisions were consolidated in the publication of the ''Revised Statutes of Canada, 1886''. It was assigned the

short title In certain jurisdictions, including the United Kingdom and other Westminster system, Westminster-influenced jurisdictions (such as Canada or Australia), as well as the United States and the Philippines, primary legislation has both a short title an ...

of the ''Navigable Waters Protection Act'' on the publication of the ''Revised Statutes of Canada, 1906''. From 1882 to 1966, the Act was administered by the Department of Public Works. By 2002, it was described as a "federal statute designed to protect the public’s right to navigation and marine safety in the navigable waters of Canada." The Act was "administered by the Navigable Waters Protection Program (NWPP) under the

Canadian Coast Guard The Canadian Coast Guard (CCG; ) is the coast guard of Canada. Formed in 1962, the coast guard is tasked with marine search and rescue (SAR), communication, navigation, and transportation issues in Canadian waters, such as navigation aids and i ...

(CCG) of the Department of Fisheries and Oceans. In 2004, responsibility for the Act was transferred to

Transport Canada Transport Canada () is the Ministry (government department), department within the Government of Canada responsible for developing regulations, Policy, policies and Public services, services of road, rail, marine and air Transport in Canada, tra ...

. The Canadian Coast Guard (CCG) may also be consulted regarding navigation issues.

Application

Works that affect

navigation Navigation is a field of study that focuses on the process of monitoring and controlling the motion, movement of a craft or vehicle from one place to another.Bowditch, 2003:799. The field of navigation includes four general categories: land navig ...

are subject to federal approval under the Act, which is generally coordinated with corresponding provincial approvals (as the beds of navigable waters are generally reserved to the Crown in right of the province) The ''Act'' was amended in March 2009 in order to simplify procedures. As a consequence, the ''Minor Works and Waters Order'' was passed to provide for exempting minor works and waters from the Act's application. In 2012, the ''Act'' was amended by the ''Jobs and Growth Act, 2012'' to provide for: :* the limitation of the Act’s application to works in certain navigable waters that are set out in its schedule, :* it to be deemed to apply to certain works in other navigable waters, with the approval of the Minister of Transport, :* an assessment process for certain works and to provide that works that are assessed as likely to substantially interfere with navigation require the Minister’s approval, and :* administrative monetary penalties and additional offences. The amendments came into force in April 2014. The ''Bridge To Strengthen Trade Act'' exempts the construction of the new

Detroit River International Crossing The Gordie Howe International Bridge (), known during development as the Detroit River International Crossing and the New International Trade Crossing, is a cable-stayed international bridge across the Detroit River, currently under construction ...

from the scope of the ''Act''.

Scope of the ''Act''

In ''Friends of the Oldman River Society v. Canada'', La Forest J of the

Supreme Court of Canada The Supreme Court of Canada (SCC; , ) is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants eac ...

considered what the proper scope of federal jurisdiction with respect to environmental matters, and declared:

Definition of Navigable Waters

Until recently, the Act was relatively silent about what constituted navigable waters, saying only that they included "a canal and any other body of water created or altered as a result of the construction of any work." The

, however, adopted the "floating canoe" threshold in 1906, holding that any water that was navigable and floatable was within its scope. "The definition of ‘navigable water’ is broad and inclusive, and must be interpreted by relying upon a definition provided in the NWPA and related jurisprudence. Briefly, if a craft is able to pass over a body of water, the body of water would be considered navigable. The craft could be as large as a steamship or as small as a canoe or a raft." In 2011, the

Ontario Superior Court of Justice The Superior Court of Justice (French: ''Cour supérieure de justice'') is a superior court in Ontario. The Court sits in 52 locations across the province, including 17 Family Court locations, and consists of over 300 federally appointed judges. ...

concluded that the common law of navigability “requires that the waterway be navigable” and “must be capable in its natural state of being traversed by large or small craft of some sort.” It summarized the Canadian jurisprudence on this matter as follows: (citing ''Coleman v Ontario (Attorney General)'',

983 Year 983 ( CMLXXXIII) was a common year starting on Monday of the Julian calendar. Events By place Europe * Summer – Diet of Verona: Emperor Otto II (the Red) declares war against the Byzantine Empire and the Emirate of Sicily ...

O.J. No. 275, at par. 15) #A stream, to be navigable in law, must be navigable in fact. That is, it must be capable in its natural state of being traversed by large or small craft of some sort—as large as steam vessels and as small as canoes, skiffs and rafts drawing less than one foot of water. #"Navigable" also means "floatable" in the sense that the river or stream is used or is capable of use to float logs, log-rafts and booms. #A river or stream may be navigable over part of its course and not navigable over other parts. #To be navigable in law, a river or stream need not in fact be used for navigation so long as realistically it is capable of being so used. #According to the

Civil Code of Quebec The ''Civil Code of Quebec'' (CCQ; , ) is the civil code in force in the Canadian province of Quebec, which came into effect on January 1, 1994. It replaced the '' Civil Code of Lower Canada'' () enacted by the Legislative Assembly of the Provin ...

, the river or stream must be capable of navigation in furtherance of trade and commerce. The test according to the law of Quebec is thus navigability for commercial purposes, but that is not applicable in the common law provinces. #The underlying concept of navigability in law is that the river or stream is a public aqueous highway used or capable of use by the public. #Navigation need not be continuous but may fluctuate seasonally. #Interruptions to navigation such as rapids on an otherwise navigable stream which may, by improvements such as canals be readily circumvented, do not render the river or stream non-navigable in law at those points. #A stream not navigable in its natural state may become so as a result of artificial improvements. Therefore, navigable waters include all bodies of water that are capable of being navigated by any type of floating vessel for transportation, recreation or commerce. In that respect, frequency of navigation may not be a factor in determining a navigable waterway if it has the potential to be navigated, it will be determined “navigable”. In 2019, the definition was replaced by the following: This was held to have ousted the common law definition, according to a judgment of the

Superior Court of Ontario The Superior Court of Justice (French: ''Cour supérieure de justice'') is a superior court in Ontario. The Court sits in 52 locations across the province, including 17 Family Court locations, and consists of over 300 federally appointed judges. ...

in 2020., discussing

Attempted amendments

A paper commissioned for the Walkerton Inquiry reported:

History

Application

Scope of the ''Act''

Definition of Navigable Waters

Attempted amendments

References

Further reading