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October 30, 2012

New federal navigation act provides clarity: Canadian Construction Association

Introduction of a new federal Navigation Protection Act eliminates a degree of uncertainty encountered on certain construction projects nationwide, says the Canadian Construction Association (CCA).

“It brings predictability, certainty and timeliness to a permitting process that had become very uncertain,” said Michael Atkinson, CCA president.

“It caused projects to be delayed and for some to either have over-expenditures or be stopped.”

The new act was introduced as part of a recently tabled federal budget implementation bill. The new act would replace the Navigable Waters Protection Act (NWPA) which concerns the protection of the public right to navigable waters by any type of floating vessel for the purpose of transportation, recreation or commerce.

The NWPA ensures a balance between the public right to navigate and the need to build works in navigable waters, according to the Transport Canada website.

“What was happening was that there was legal uncertainty that came with the definition of navigable waters,” explained Atkinson.

The NWPA was enacted in 1882 and regulated the extent to which bridges and shoreline construction get in the way of ship and boat traffic.

For example, without approval under the act, a court could order a local council to remove a bridge if it was seen to be blocking navigation, explained a Transport Canada press statement.

“The new act ensures that the original act returns to its initial intent, the protection of commercial navigation on Canada’s commercial waterways,” Atkinson said.

“This is not a piece of environmental legislation and was never intended to be. It was meant to protect commercial navigation.”

The new act covers a list of 97 lakes, 62 rivers and the three oceans on Canada’s coasts. The federal government consulted with provincial and territorial government to identify the bodies of water that are commonly agreed upon to be ones involved with commercial navigation.

“For years, provincial, territorial and municipal governments have asked us to make it easier for communities to build important infrastructure like roads, bridges and wharfs that create jobs,” said Denis Lebel, Canada’s infrastructure, transport and communities minister, in a press statement.

“The new Navigation Protection Act will cut through the red tape that slows down bridge work and respects navigation rights to keep Canadians moving.”

This new legislation will help construction companies better predict their own requirements on future construction projects, according to the CCA. In some cases, the approval process for a permit under the original NWPA could take 12 to 18 months “which is an entire construction season or more,” said Atkinson.

This delay and uncertainty made it difficult for construction firms to predict their costs and mobilize the appropriate workforce for a project, creating an unnecessary inefficiency both for construction and those involved in projects.

“So, now, if you are doing a project which abuts, goes over or under a body of water in Canada, if that body of water is not on that new list, you no longer have to get a permit from Transport Canada,” said Atkinson.

However, the CCA president did note that a construction firm will still have to abide by all the federal, provincial or local rules with respect to waterways, fish habitats, etc.

“But when it comes to having a permit to satisfy the concerns under the Navigation Protection Act, there is now clarity. For everyone involved in infrastructure building it brings certainty and bringing certainty can only be good.”

The proposed amendments in the new legislation will:

— change the name of this law to the Navigation Protection Act to reflect its historic intent;

— clearly list the major waterways for which regulatory approval is required prior to the placement or construction of a work;

— allow proponents of works in unlisted waters to opt-in and seek approval of their proposed work to give them additional legal certainty by allowing them to choose; and

— expand the list of low risk works (like minor repairs on bridges) that can be pre-approved because they pose very little impact on safe navigation.

“The current act has created a bureaucratic black hole holding up simple projects like municipal infrastructure and small recreational docks that do not actually interfere with navigation,” added Lebel in a statement.

Technical briefings will be held through fall 2012 with industry and Aboriginal groups, and other interested parties.

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