An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts (S.C. 2019, c. 28)
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Assented to 2019-06-21
PART 2Canadian Energy Regulator Act (continued)
Transitional Provisions (continued)
Marginal note:Grievances
31 (1) The provisions of Part 2 of the Federal Public Sector Labour Relations Act and any rules or regulations made under that Act, as they read immediately before the commencement day, continue to apply in respect of any grievance presented under that Part before that day by an employee of the National Energy Board.
Marginal note:Implementation of decision
(2) A final decision with respect to a grievance referred to in subsection (1) that provides for the reinstatement of an employee or the payment of money to an employee must be implemented by the Regulator as soon as feasible.
Marginal note:Matter referred to Board
32 The provisions Part 2 of the Federal Public Sector Labour Relations Act and any rules or regulations made under that Act, as they read immediately before the commencement day, continue to apply in respect of any matter referred to the Board under that Part before that day that relates to the National Energy Board.
Marginal note:Decisions and orders
33 Every decision or order made by the National Energy Board is considered to have been made under the Canadian Energy Regulator Act and may be enforced as such.
Marginal note:Certificates, licences and permits
34 (1) Every certificate, licence or permit issued by the National Energy Board is considered to have been issued under the Canadian Energy Regulator Act and, unless suspended or revoked under that Act, every certificate, licence or permit remains in force for the remainder of the period during which it would have been in force had the Canadian Energy Regulator Act not come into force.
Marginal note:Suspensions
(2) Every certificate, licence or permit referred to in subsection (1) that was suspended immediately before the commencement day is considered to be suspended under the Canadian Energy Regulator Act.
Marginal note:Leave
35 Any leave granted by the National Energy Board is considered to have been granted under the Canadian Energy Regulator Act.
Marginal note:Pending applications
36 Applications pending before the National Energy Board immediately before the commencement day are to be taken up before the Commission of the Regulator and continued in accordance with the National Energy Board Act as it read immediately before the commencement day.
Marginal note:For greater certainty
36.1 For greater certainty, section 182.1 of the Impact Assessment Act applies in relation to a pending application referred to in section 36.
Marginal note:Excluded periods if no regulations — Part 3
37 (1) Before the coming into force of the first regulation made for the purposes of subsection 183(5) or 214(5) of the Canadian Energy Regulator Act, the Lead Commissioner may, in the circumstances that he or she considers appropriate, exercise the powers set out in those subsections.
Marginal note:Excluded periods if no regulations — Part 4
(2) Before the coming into force of the first regulation made for the purposes of subsection 262(6) of the Canadian Energy Regulator Act, the Lead Commissioner may, in the circumstances that he or she considers appropriate, exercise the power set out in that subsection.
Marginal note:Excluded periods if no regulations — Part 5
(3) Before the coming into force of the first regulation made for the purposes of subsection 298(6) of the Canadian Energy Regulator Act, the Lead Commissioner may, in the circumstances that he or she considers appropriate, exercise the power set out in that subsection.
Marginal note:Certified copies
38 For the purposes of sections 198, 208 and 265 of the Canadian Energy Regulator Act, a copy of a document that is certified by the Secretary of the National Energy Board is considered to have been certified by the Regulator under that Act.
Marginal note:Lands — consent not required
39 A person or company is not required to obtain the consent referred to in subsection 317(1) of the Canadian Energy Regulator Act in relation to lands if, before the commencement day,
(a) the person or company had taken possession of, used or occupied those lands; or
(b) the person or company had obtained the authorization under the National Energy Board Act, as it read immediately before the commencement day, to construct or operate a pipeline or power line on those lands.
Marginal note:Section 112 of National Energy Board Act
40 Section 112 of the National Energy Board Act, as it read immediately before the commencement day, continues to apply in relation to compensation matters in respect of a pipeline for which
(a) an application for a certificate under subsection 52(1) of that Act was received by the National Energy Board before that day; or
(b) an application for an order under subsection 58(1) of that Act was received by the National Energy Board before that day.
Marginal note:Pending requests
41 Any request for which a notice was served on the Minister under subsections 88(1) and 90(1) of the National Energy Board Act, as those sections read immediately before the commencement day, is continued in accordance with those subsections.
Marginal note:Importation of oil or gas
42 (1) Division I of Part VI of the National Energy Board Act, as it read immediately before the commencement day, continues to apply to the importation of oil or gas until the earlier of the third anniversary of the commencement day and the day on which regulations are made for the purposes of section 352 of the Canadian Energy Regulator Act.
Marginal note:Interpretation
(2) For the purposes of subsection (1), every reference to the National Energy Board in Division I of Part VI of the National Energy Board Act is to be read as a reference to the Regulator or the Commission of the Regulator, as the case may be.
Marginal note:References
42.1 Every reference to the National Energy Board in any deed, contract, agreement or other document executed, or in Quebec, signed, by the National Energy Board in its own name is, unless the context otherwise requires, to be read as a reference to the Regulator.
Marginal note:Appropriations
42.2 Any amount that is appropriated by an Act of Parliament for the fiscal year in which the commencement day falls to defray the expenditures of the National Energy Board and that is unexpended on that day is considered to be an amount appropriated to defray the expenditures of the Regulator.
Marginal note:Regulations
43 The Governor in Council may make any regulations that the Governor in Council considers necessary to provide for any other transitional matter arising from the coming into force of the Canadian Energy Regulator Act.
Repeal
Marginal note:Repeal
44 The National Energy Board Act, chapter N-7 of the Revised Statutes of Canada, is repealed.
PART 3R.S., c. N-22; 2012, c. 31, s. 316Navigation Protection Act
Amendments to the Act
45 The long title of the Navigation Protection Act is replaced by the following:
Marginal note:2012, c. 31, s. 316
46 Section 1 of the Act is replaced by the following:
Marginal note:Short title
1 This Act may be cited as the Canadian Navigable Waters Act.
Marginal note:2012, c. 31, s. 317(5)
47 (1) The definitions designated work and minor water in section 2 of the Act are repealed.
Marginal note:2012, c. 31, s. 317(5)
(2) The definition ouvrage secondaire in section 2 of the French version of the Act is repealed.
Marginal note:2012, c. 31, ss. 317(4) and (5)
(3) The definitions navigable water, obstruction, owner, vessel and work in section 2 of the Act are replaced by the following:
- navigable water
navigable water means a body of water, including a canal or any other body of water created or altered as a result of the construction of any work, that is used or where there is a reasonable likelihood that it will be used by vessels, in full or in part, for any part of the year as a means of transport or travel for commercial or recreational purposes, or as a means of transport or travel for Indigenous peoples of Canada exercising rights recognized and affirmed by section 35 of the Constitution Act, 1982, and
(a) there is public access, by land or by water;
(b) there is no such public access but there are two or more riparian owners; or
(c) Her Majesty in right of Canada or a province is the only riparian owner. (eaux navigables)
- obstruction
obstruction means any thing, including a vessel that is left anchored, moored or adrift or a wreck, that obstructs or impedes navigation or renders it more difficult or dangerous, but does not include a thing of natural origin unless a person causes the thing of natural origin to obstruct or impede navigation or to render it more difficult or dangerous. (obstacle)
- owner
owner, in relation to a work, means the actual or reputed owner of the work or that owner’s agent or mandatary. It includes a person who is in possession or claiming ownership of the work and a person who is authorizing or otherwise responsible for the construction, placement, alteration, rebuilding, removal, decommissioning, repair, maintenance, operation, use or safety of the work. It also includes a person who proposes to construct or place a work. (propriétaire)
- vessel
vessel includes any description of ship, boat or floating craft designed, used or capable of being used for navigation, without regard to method or lack of propulsion, including everything forming part of its machinery, tackle, equipment, cargo, stores or ballast. (bâtiment)
- work
work includes
(a) any structure, device or other thing, whether temporary or permanent, that is made by humans, including a structure, device or other thing used for the repair or maintenance of another work; and
(b) any dumping of fill in any navigable water, or any excavation or dredging of materials from the bed of any navigable water. (ouvrage)
(4) Section 2 of the Act is amended by adding the following in alphabetical order:
- Indigenous knowledge
Indigenous knowledge means the Indigenous knowledge of the Indigenous peoples of Canada. (connaissances autochtones)
- Indigenous peoples of Canada
Indigenous peoples of Canada has the meaning assigned by the definition aboriginal peoples of Canada in subsection 35(2) of the Constitution Act, 1982. (peuples autochtones du Canada)
(5) Section 2 of the Act is amended by adding the following in alphabetical order:
- major work
major work means any work designated under paragraph 28(2)(b). (ouvrage majeur)
(6) Section 2 of the French version of the Act is amended by adding the following in alphabetical order:
- minor work
ouvrage mineur Ouvrage désigné en vertu de l’alinéa 28(2)a). (minor work)
47.1 The Act is amended by adding the following after section 2:
Marginal note:For greater certainty — navigable water
2.01 For greater certainty, the definition navigable water in section 2 does not include artificial irrigation channels or drainage ditches.
48 The Act is amended by adding the following after section 2.1:
Indigenous Peoples of Canada
Marginal note:Rights of Indigenous peoples of Canada
2.2 For greater certainty, nothing in this Act is to be construed as abrogating or derogating from the protection provided for the rights of the Indigenous peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.
Marginal note:Duty of Decision Maker
2.3 When making a decision under this Act, the Minister must consider any adverse effects that the decision may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.
Marginal note:2012, c. 31, s. 318
49 Sections 3 to 10 of the Act are replaced by the following:
Prohibition
Marginal note:Works
3 Except in accordance with this Act, it is prohibited to construct, place, alter, rebuild, remove or decommission a work in, on, over, under, through or across any navigable water.
Minor Works in any Navigable Water
Marginal note:Minor works
4 (1) An owner of a minor work may construct, place, alter, rebuild, remove or decommission the minor work in, on, over, under, through or across any navigable water in accordance with the requirements under this Act.
Marginal note:Repair, maintenance, operation and use
(2) The owner must repair, maintain, operate and use the minor work in accordance with the requirements under this Act.
Major Works in any Navigable Water and Works in Navigable Waters Listed in Schedule
Marginal note:Notice
4.1 An owner who proposes to construct, place, alter, rebuild, remove or decommission one of the following works may do so if the work, or its construction, placement, alteration, rebuilding, removal or decommissioning, would not interfere with navigation and the owner, before beginning the construction, placement, alteration, rebuilding, removal or decommissioning, deposits any information specified by the Minister in any place specified by the Minister and publishes a notice in any manner, and including any information, specified by the Minister:
(a) a major work in, on, over, under, through or across any navigable water; or
(b) a work — other than a minor work — in, on, over, under, through or across any navigable water that is listed in the schedule.
Marginal note:Application for approval
5 (1) An owner who proposes to construct, place, alter, rebuild, remove or decommission one of the following works must make an application for an approval to the Minister — in the form and manner, and containing the information, specified by the Minister — if the work, or its construction, placement, alteration, rebuilding, removal or decommissioning, may interfere with navigation:
(a) a major work in, on, over, under, through or across any navigable water; or
(b) a work — other than a minor work — in, on, over, under, through or across any navigable water that is listed in the schedule.
Marginal note:Related works
(2) If the Minister is of the opinion that two or more works are related, the Minister may consider them to be a single work.
Marginal note:Additional information
(3) For the purpose of determining whether the work or its construction, placement, alteration, rebuilding, removal or decommissioning may interfere with navigation, the Minister may require from the owner any additional information that the Minister considers appropriate.
Marginal note:No interference with navigation
6 If the Minister is of the opinion that a work that is the subject of an application made under subsection 5(1), or its construction, placement, alteration, rebuilding, removal or decommissioning, would not interfere with navigation, including by changing the water level or water flow of a navigable water, he or she must inform the owner, in writing, of that opinion and no approval is required under subsection 7(6) for that work — or its construction, placement, alteration, rebuilding, removal or decommissioning.
Marginal note:Interference with navigation
7 (1) If the Minister is of the opinion that a work that is the subject of an application made under subsection 5(1), or its construction, placement, alteration, rebuilding, removal or decommissioning, may interfere with navigation, including by changing the water level or water flow of a navigable water, he or she must inform the owner, in writing, of that opinion and the owner may only construct, place, alter, rebuild, remove or decommission that work if the Minister issues an approval for the work.
Marginal note:Information
(2) The owner must deposit any information specified by the Minister in any place specified by the Minister.
Marginal note:Notice
(3) The owner must publish a notice containing any information specified by the Minister in any manner specified by the Minister.
Marginal note:Comment period
(4) The notice referred to in subsection (3) must invite interested persons to provide written comments on the owner’s proposal to the Minister within 30 days after publication of the notice or within any other period specified by the Minister.
Marginal note:Exemption
(5) If the Minister is satisfied that the owner has already deposited sufficient information in a place specified by the Minister or published a sufficient notice, the Minister may exempt the owner from the application of subsection (2) or (3), as the case may be.
Marginal note:Approval
(6) The Minister may issue an approval for the work, including its site and plans, if he or she considers it appropriate in the circumstances.
Marginal note:Assessment — factors
(7) In determining whether to issue the approval, the Minister must consider the following:
(a) the characteristics of the navigable water in question;
(b) the safety of navigation in that navigable water;
(c) the current or anticipated navigation in that navigable water;
(d) the impact of the work on navigation, including as a result of its construction, placement, alteration, rebuilding, removal, decommissioning, repair, maintenance, operation or use;
(e) the impact of the work, in combination with other works, on navigation, if the Minister is provided with, or has in his or her possession, information relating to that cumulative impact;
(f) any Indigenous knowledge that has been provided to the Minister;
(g) any comments that he or she receives from interested persons within the period provided for under subsection (4);
(h) the record of compliance of the owner under this Act; and
(i) any other information or factor that he or she considers relevant.
Marginal note:Additional information
(8) For the purpose of determining whether to issue the approval, the Minister may require from the owner any additional information that the Minister considers appropriate.
Marginal note:Terms and conditions
(9) The Minister may attach any term or condition that he or she considers appropriate to an approval including one that requires the owner to
(a) maintain the water level or water flow necessary for navigation purposes in a navigable water; or
(b) give security in the form of a letter of credit, guarantee, suretyship or indemnity bond or insurance or in any other form that is satisfactory to the Minister.
Marginal note:Effect of approval
(10) An approval issued under this section in relation to a work replaces any approval previously issued in relation to that work.
Marginal note:Contiguous area
(11) The Minister may, in an approval, designate an area contiguous to a work that is necessary for the safety of persons and navigation and, for the purposes of the approval, that area is considered to be part of the work.
Marginal note:Compliance with requirements
(12) The owner must comply with the approval and maintain, operate and use the work in accordance with the requirements under this Act.
Marginal note:Approval after activity begins
(13) The Minister may, if he or she considers that it is justified in the circumstances, approve the construction, placement, alteration, rebuilding, removal or decommissioning of a work after the construction, placement, alteration, rebuilding, removal or decommissioning begins or is completed.
Marginal note:Transfer
8 If the ownership of a work to which an approval relates is transferred, the transferor and the transferee must immediately give written notice of the transfer to the Minister, in the form and manner, and containing the information, specified by the Minister.
Marginal note:Amendment of approval
9 (1) The Minister may amend an approval by amending or revoking any term or condition of the approval.
Marginal note:Amendment resulting from order
(2) The Minister may otherwise amend the approval, including by adding terms and conditions, to reflect any changes to the work resulting from an order made under section 11 or 13.
Marginal note:Other amendments
(3) The Minister may otherwise amend the approval, including by adding terms and conditions, if he or she considers that
(a) the work that is the subject of the approval interferes more with navigation at the time in question than it did when the approval was issued;
(b) the work causes or is likely to cause a serious and imminent danger to navigation;
(c) the amendment of the approval is in the public interest; or
(d) the owner consents to the amendment.
Marginal note:Suspension or cancellation
(4) The Minister may suspend or cancel an approval if he or she considers that
(a) the owner has not complied with the approval;
(b) the approval was obtained by a fraudulent or improper means or by the misrepresentation of a material fact;
(c) the owner has not paid a fine or penalty imposed under this Act;
(d) the owner has contravened this Act; or
(e) the suspension or cancellation is in the public interest, including by reason of the record of compliance of the owner under this Act.
Marginal note:Notice
(5) The Minister must give the owner 30 days’ notice setting out the grounds on which the Minister relies for the amendment, except in the case of an amendment made under subsection (2) or paragraph (3)(b), suspension or cancellation of the approval of a work if he or she is amending it without the owner’s consent or suspending or cancelling it.
Works in Navigable Waters not Listed in Schedule
Marginal note:Notice
9.1 An owner who proposes to construct, place, alter, rebuild, remove or decommission a work — other than a major work or a minor work — in, on, over, under, through or across any navigable water that is not listed in the schedule may do so if
(a) the work, or its construction, placement, alteration, rebuilding, removal or decommissioning, would not interfere with navigation; and
(b) before beginning the construction, placement, alteration, rebuilding, removal or decommissioning, the owner deposits any information specified by the Minister in any place specified by the Minister and publishes a notice in any manner, and including any information, specified by the Minister.
Marginal note:Application or notice
10 (1) An owner who proposes to construct, place, alter, rebuild, remove or decommission a work — other than a major work or a minor work — in, on, over, under, through or across any navigable water that is not listed in the schedule must take one of the following steps if the work, or its construction, placement, alteration, rebuilding, removal or decommissioning, may interfere with navigation:
(a) make an application for an approval to the Minister, in the form and manner, and containing the information, specified by the Minister; or
(b) deposit any information specified by the Minister in any place specified by the Minister and publish a notice in any manner, and including any information, specified by the Minister.
Marginal note:Deeming
(2) An application made under paragraph (1)(a) is deemed to be an application made under subsection 5(1) and, if an approval is issued under subsection 7(6) in respect of the application, the work to which the approval relates is deemed to be a work constructed or placed in, on, over, under, through or across a navigable water that is listed in the schedule.
Marginal note:Comment period
(3) The notice referred to in paragraph (1)(b) must invite interested persons to provide written comments on the proposal, as it relates to navigation, to the owner within 30 days after publication of the notice or within any other period prescribed by regulation.
Marginal note:Attempt to resolve
10.1 (1) If a comment that is provided to an owner under subsection 10(3) expresses a concern relating to navigation, the owner and the person who made the comment must attempt to resolve the person’s concern within 45 days after the end of the period set out in that subsection or within any other period prescribed by regulation.
Marginal note:Change to proposal
(2) If, as a result of an attempt to resolve a concern under subsection (1), the owner makes a material change to the proposal, he or she must deposit the new information and publish a new notice, in accordance with paragraph 10(1)(b).
Marginal note:Request to Minister
(3) If the concern is not resolved within the period referred to in subsection (1), the person who made the comment may, within 15 days after the end of that period or within any other period prescribed by regulation, make a request to the Minister — in the form and manner, and containing the information, specified by the Minister — for a decision on whether the owner is required to apply for an approval in relation to the work.
Marginal note:Decision by Minister
(4) On receipt of a request under subsection (3), the Minister may decide that the owner is required to apply for an approval in relation to the work.
Marginal note:Additional information
(5) For the purpose of deciding whether to require an application for an approval under subsection (4), the Minister may require from the owner any additional information that the Minister considers appropriate.
Marginal note:Notice
(6) The Minister must inform the owner and the person who made the request of his or her decision.
Marginal note:Work may commence
10.2 (1) An owner who publishes a notice referred to in paragraph 10(1)(b) may only construct, place, alter, rebuild, remove or decommission the work
(a) if no comments are provided to the owner, or if comments are provided to the owner but no concerns relating to navigation are expressed in those comments, after the day on which the comment period ends;
(b) if comments are provided to the owner and concerns relating to navigation are expressed in those comments but all such concerns are resolved, after the later of
(i) the day on which the comment period ends, and
(ii) the day on which all the concerns are resolved; or
(c) if comments are provided to the owner and those comments express concerns relating to navigation but any such concern remains unresolved and
(i) no request is made under subsection 10.1(3), after the day on which the period referred to in that subsection ends, or
(ii) a request is made under subsection 10.1(3) and
(A) the Minister decides that the owner is not required to apply for an approval in relation to the work, after the day on which the owner receives notice of that decision, or
(B) the Minister decides that the owner is required to apply for an approval in relation to the work, after the day on which the approval is issued or, if it is later, the day set out in the approval.
Marginal note:Prohibition
(2) Despite subsection (1), an owner is prohibited from constructing, placing, altering, rebuilding, removing or decommissioning a work that extinguishes navigation for vessels of any class that navigate, or are likely to navigate, the navigable water in question.
Marginal note:Change
(3) For greater certainty, if, at any time, an owner referred to in subsection (1) makes a material change to the work or to the method of its construction, placement, alteration, rebuilding, removal or decommissioning, the owner must either make an application under paragraph 10(1)(a) or deposit new information and publish a new notice in accordance with paragraph 10(1)(b).
Owner’s Duty
Marginal note:Notification
10.3 (1) An owner of a work in, on, over, under, through or across any navigable water must immediately notify the Minister if the work, or its construction, placement, alteration, rebuilding, removal or decommissioning, causes or is likely to cause a serious and imminent danger to navigation.
Marginal note:Duty
(2) The owner must, as soon as feasible, take all reasonable measures consistent with public safety and with the safety of navigation to prevent any serious and imminent danger to navigation that is caused or likely to be caused by the work, or its construction, placement, alteration, rebuilding, removal or decommissioning, or to counteract, mitigate or remedy any adverse effects that result from that danger to navigation or might reasonably be expected to result from it.
Minister’s Powers
Marginal note:Emergency
10.4 (1) Even if the application referred to in subsection 5(1) or paragraph 10(1)(a) has not yet been made, or the notice referred to in paragraph 10(1)(b) has not yet been published, the Minister may authorize, subject to any terms or conditions that he or she considers appropriate, the construction, placement, alteration, rebuilding, removal or decommissioning of a work — other than a minor work — in, on, over, under, through or across any navigable water if the Minister is of the opinion that it must be carried out immediately in order to respond to
(a) a matter of national security;
(b) a national emergency in respect of which special temporary measures are being taken under the Emergencies Act; or
(c) an emergency that
(i) poses a risk to public health, safety, the environment or property, or
(ii) threatens to cause social disruption or a breakdown in the flow of essential goods, services or resources.
Marginal note:Approval
(2) The Minister may issue an approval for a work authorized under subsection (1), including its site and plans, if he or she considers it appropriate in the circumstances.
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