Regulations Amending the Vessel Operation Restriction Regulations: SOR/2022-24
Canada Gazette, Part II, Volume 156, Number 5
Registration
SOR/2022-24 February 21, 2022
CANADA SHIPPING ACT, 2001
P.C. 2022-131 February 18, 2022
Her Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to subsection 136(1)footnote a and section 207footnote b of the Canada Shipping Act, 2001footnote c, makes the annexed Regulations Amending the Vessel Operation Restriction Regulations.
Regulations Amending the Vessel Operation Restriction Regulations
Amendments
1 Subsections 10.1(1) and (2) of the Vessel Operation Restriction Regulationsfootnote 1 are replaced by the following:
10.1 (1) The Minister may, after considering the factors listed in subsection (1.1), issue a permit, for a period specified in the permit, that authorizes the person in whose name the permit is issued to operate a vessel in the waters referred to in any of subsections 2(1) to (5) and (7) in a manner that is contrary to those subsections for any of the following purposes:
- (a) developing aquaculture;
- (b) conducting scientific research;
- (c) accessing a historical, cultural, ecological or geological site;
- (d) educating the public on the marine environment;
- (e) protecting the environment;
- (f) supporting the construction and maintenance of infrastructure; and
- (g) ensuring safety during activities and events other than those referred to in subsections 11(2) and (3).
(1.1) The factors referred to in subsection (1) are the following:
- (a) the protection of the public interest;
- (b) the protection of the environment;
- (c) the safe and efficient navigation of vessels;
- (d) the type and size of the vessel to which the permit relates;
- (e) the intended use of the vessel; and
- (f) the characteristics of the body of water.
(2) The Minister shall set out in the permit any conditions that are necessary to protect the public interest and the environment and to minimize risk to the safety of persons and interference with the safe and efficient navigation of vessels.
2 Subsections 12(1) and (2) of the Regulations are replaced by the following:
12 (1) The Minister may, after considering the factors listed in subsection (1.1), issue a permit that authorizes a person to hold, in the waters referred to in any of subsections 2(1) to (7) and 11(2), a sporting, recreational or public event or activity during which vessels will be operated in a manner that is contrary to those subsections.
(1.1) The factors referred to in subsection (1) are the following:
- (a) the protection of the public interest;
- (b) the protection of the environment;
- (c) the safe and efficient navigation of vessels;
- (d) the type and size of the vessels to which the permit relates;
- (e) the intended use of the vessels; and
- (f) the characteristics of the body of water.
(2) The Minister shall set out in the permit any conditions that are necessary to protect the public interest and the environment and to minimize risk to the safety of persons and interference with the safe and efficient navigation of vessels.
| Item | Column 1 Persons or classes of persons |
Column 2 Geographic location |
|---|---|---|
| 27 | A community peace officer appointed under section 7 of the Alberta Peace Officer Act, S.A. 2006, c. P-3.5 and employed by the City of Edmonton | Alberta |
| Item | Column 1 Name Given by the Gazetteer of Canada or Description |
Column 4 Location Reference (Gazetteer of Canada Reference System) |
|---|---|---|
| 100 | The waters of the Columbia River and its tributaries lying within the flood plain of the Columbia River north of a point at 50°21′13.4″ 115°52′51.9″ (approximately 1.6 km northwest of Fairmont Hot Springs) and south and east of a point at 51°28′48″ 117°09′33″, on the northernmost tip of a small island (approximately 1.8 km south of the Trans-Canada Highway bridge at Donald) but excluding the waters of Windermere Lake and the main channel of the Columbia River and its tributaries (see Note 3) | 50°55′04.3″ 116°22′47.9″ |
| 100.1 | The waters of the main channel of the Columbia River and its tributaries lying within the flood plain of the Columbia River north of a point at 50°21′13.4″ 115°52′51.9″ (approximately 1.6 km northwest of Fairmont Hot Springs) and south and east of a point at 51°28′48″ 117°09′33″, on the northernmost tip of a small island (approximately 1.8 km south of the Trans-Canada Highway bridge at Donald) but excluding the waters of Windermere Lake (see Note 4) | 50°55′04.3″ 116°22′47.9″ |
| Item | Column 1 Name Given by the Gazetteer of Canada or Description |
Column 2 Specific Location |
Column 3 Location Reference (Gazetteer of Canada Reference System) |
|---|---|---|---|
| 25 | That part of the Don River from Keating Channel to Polson Slip, delineated by a line beginning at a point at 43°39′3.06″ 79°20′50.4″, thence to 43°39′0.1″ 79°20′48″, thence to 43°38′50.87″ 79°20′41.87″, thence to 43°38′43.93″ 79°20′34.33″, thence to 43°38′41.11″ 79°20′39.27″, thence to 43°38′46.43″ 79°20′44.99″, thence to 43°38′38.58″ 79°21′4.14″, thence to 43°38′37.27″ 79°21′7.88″, thence to 43°38′38.17″ 79°21′10.36″, thence to 43°38′39.73″ 79°21′9.11″, thence to 43°38′48.84″ 79°20′47.15″, thence to 43°38′52.93″ 79°20′49.78″, thence to 43°38′59.07″ 79°20′50.42″, thence to 43°39′0″ 79°20′51.96″ and thence to 43°39′2.41″ 79°20′51.9″ (see Note 3) | Located at the coordinates set out in column 1 | 43°38′48.05″ 79°20′45.56″ |
6 Part 3 of Schedule 2 to the Regulations is amended by adding the following after Note 2:
Note 3: The prohibition does not apply to a vessel that is permitted by a local authority to dredge at the intersection of the Don River and Keating Channel within an area delineated by a line beginning at a point at 43°39′3.06″ 79°20′50.4″, thence to 43°39′0.1″ 79°20′48″, thence to 43°38′59.07″ 79°20′50.42″, thence to 43°39′0″ 79°20′51.96″ and thence to 43°39′2.41″ 79°20′51.9″.
| Item | Column 1 Name Given by the Répertoire toponymique du Québec or Description |
Column 2 Local Name |
Column 3 Location Reference (Répertoire toponymique du Québec Reference System) |
|---|---|---|---|
| 17 | Streams in the marsh of the Lake Mégantic, including a zone of the Lake Mégantic bounded by a line beginning at a point at 45°27′29.827″ 70°53′28.110″, thence to 45°27′39.340″ 70°53′20.482″, thence to 45°27′41.231″ 70°53′10.456″, thence to 45°28′01.705″ 70°52′27.148″ and thence to 45°28′05.321″ 70°52′10.611″ (see Note) | Marais du lac Mégantic | 45°27′35″ 70°52′49″ |
| 18 | Streams in the marsh of the Victoria River, including a zone of the Lake Mégantic bounded by a line beginning at a point at 45°32′32.110″ 70°55′33.760″, thence to 45°32′36.569″ 70°55′35.536″, thence to 45°32′42.459″ 70°55′45.161″, thence to 45°32′43.756″ 70°55′48.884″, thence to 45°32′42.375″ 70°56′00.876″ and thence to 45°32′40.415″ 70°56′02.211″ (see Note) | Marais de la rivière Victoria | 45°32′35″ 70°55′48″ |
| Item | Column 1 Name Given by the Répertoire toponymique du Québec or Description |
Column 3 Location Reference (Répertoire toponymique du Québec Reference System) |
|---|---|---|
| 21 | Aux Araignées Lake, within a radius of 200 m from its outlet (point C at 45°27′37.988″ 70°50′58.071″) at the southwest extremity of the lake | 45°28′29″ 70°48′46″ |
| Item | Column 3 Location Reference (Répertoire toponymique du Québec Reference System) |
|---|---|
| 82 | 46°04′07″ 74°26′51″ |
| 83 | 46°05′38″ 74°24′45″ |
| 84 | 46°07′27″ 74°24′23″ |
| 85 | 46°03′03″ 74°31′20″ |
| 86 | 46°02′57″ 74°26′48″ |
| 87 | 46°05′41″ 74°29′26″ |
| 88 | 46°04′49″ 74°25′28″ |
| Item | Column 1 Name Given by the Répertoire toponymique du Québec or Description |
Column 3 Location Reference (Répertoire toponymique du Québec Reference System) |
|---|---|---|
| 89 | Larin Lake | 46°04′26″ 74°27′27″ |
| Item | Column 3 Location Reference (Répertoire toponymique du Québec Reference System) |
|---|---|
| 90 | 46°07′57″ 74°26′37″ |
| 91 | 46°03′23″ 74°29′09″ |
| 92 | 46°03′04″ 74°28′44″ |
| 93 | 46°02′10″ 74°29′26″ |
| 94 | 46°02′16″ 74°28′51″ |
| Item | Column 3 Location Reference (Répertoire toponymique du Québec Reference System) |
|---|---|
| 132 | 46°05′11″ 74°27′16″ |
| Item | Column 1 Name Given by the Répertoire toponymique du Québec or Description |
Column 3 Location Reference (Répertoire toponymique du Québec Reference System) |
|---|---|---|
| 165 | De la Raquette Lake | 46°04′08″ 74°28′25″ |
| Item | Column 3 Location Reference (Répertoire toponymique du Québec Reference System) |
|---|---|
| 251 | 46°01′58″ 74°27′20″ |
| Item |
Column 1 Name Given by the Gazetteer of Canada or Description |
Column 2 Specific Location |
Column 3 Location Reference (Gazetteer of Canada Reference System) |
|---|---|---|---|
27 |
That part of Buckhorn Lake at Gannon Narrows |
44°28′17″ 78°26′54″ to 44°28′30″ 78°27′39″ |
44°28′28″ 78°27′13″ |
| Item | Column 1 Name Given by the Gazetteer of Canada or Description |
|---|---|
| 18 | Graham Lake in Front of Yonge Township, Leeds County (see Note 2) |
| Item | Column 3 Location Reference (Gazetteer of Canada Reference System) |
|---|---|
| 18 | 44°34′00″ 75°53′00″ |
| Item | Column 2 Specific Location |
|---|---|
| 30 | 45°33′35.15″ 79°13′26.37″ to 45°32′34.49″ 79°13′39.77″ |
| Article | Colonne 2 Endroit précis |
|---|---|
| 3 | 46°21′57,8″ 79°56′02,3″ à 46°20′04,6″ 79°58′25,8″ |
| Item | Column 1 Name Given by the Répertoire toponymique du Québec or Description |
|---|---|
| 124 | Lake Mégantic outside the zones described in items 126 to 132 |
| Item | Column 3 Location Reference (Répertoire toponymique du Québec Reference System) |
Column 4 Maximum Speed in km/h Over the Ground |
|---|---|---|
| 124 | 45°30′50″ 70°52′40″ | 55 from 6:00 p.m. to 6:00 a.m. 70 from 6:00 a.m. to 6:00 p.m. |
20 Item 125 of Part 3 of Schedule 6 to the Regulations is repealed.
| Item |
Column 3 |
|---|---|
126 |
45°30′50″ 70°52′40″ |
| Item |
Column 1 Name Given by the Répertoire toponymique du Québec or Description |
Column 2 Local Name |
Column 3 Location Reference (Répertoire toponymique du Québec Reference System) |
|---|---|---|---|
127 |
Streams in the marsh of the Lake Mégantic, including a zone of the Lake Mégantic bounded by a line beginning at a point at 45°27′29.827″ 70°53′28.110″, thence to 45°27′39.340″ 70°53′20.482″, thence to 45°27′41.231″ 70°53′10.456″, thence to 45°28′01.705″ 70°52′27.148″ and thence to 45°28′05.321″ 70°52′10.611″ (see Note 3) |
Marais du lac Mégantic |
45°27′35″ 70°52′49″ |
128 |
Streams in the marsh of the Victoria River, including a zone of the Lake Mégantic bounded by a line beginning at a point at 45°32′32.110″ 70°55′33.760″, thence to 45°32′36.569″ 70°55′35.536″, thence to 45°32′42.459″ 70°55′45.161″, thence to 45°32′43.756″ 70°55′48.884″, thence to 45°32′42.375″ 70°56′00.876″ and thence to 45°32′40.415″ 70°56′02.211″ (see Note 3) |
Marais de la rivière Victoria |
45°32′35″ 70°55′48″ |
| Item | Column 3 Location Reference (Répertoire toponymique du Québec Reference System) |
|---|---|
| 129 | 45°30′50″ 70°52′40″ |
| Item | Column 1 Name Given by the Répertoire toponymique du Québec or Description |
Column 3 Location Reference (Répertoire toponymique du Québec Reference System) |
|---|---|---|
| 130 | Lake Mégantic, at the marina within the town of Lac Mégantic, north of a line beginning at a point at 45°34′21.764″ 70°53′02.721″ thence to 45°34′22.592″ 70°52′57.100″ | 45°34′26″ 70°53′6″ |
| 131 | Des Joncs Lake, east of a line beginning at a point at 45°27′13.954″ 70°51′36.690″, thence to 45°27′11.627″ 70°51′29.672″, thence to 45°26′57.104″ 70°51′00.798″ and thence to 45°26′53.798″ 70°50′46.303″ | 45°27′1″ 70°51′0″ |
| Item | Column 1 Name Given by the Répertoire toponymique du Québec or Description |
Column 2 Local Name |
Column 3 Location Reference (Répertoire toponymique du Québec Reference System) |
|---|---|---|---|
| 132 | Des Joncs Lake outlet, from the outlet of the Des Joncs Lake to a point at 45°28′01.705″ 70°52′27.148″ | Décharge du lac des Joncs | 45°27′50″ 70°52′18″ |
| Item | Column 1 Name Given by the Répertoire toponymique du Québec or Description |
Column 3 Location Reference (Répertoire toponymique du Québec Reference System) |
|---|---|---|
| 133 | Arnold River between its mouth and point P at 45°25′15.137″ 70°51′54.655″ | 45°26′23″ 70°52′4″ |
| 134 | Victoria River between point T at 45°32′37.395″ 70°55′36.889″ and point U at 45°32′17.638″ 70°56′17.447″ | 45°32′32″ 70°55′45″ |
| Item | Column 3 Location Reference (Répertoire toponymique du Québec Reference System) |
|---|---|
| 155 | 45°28′29″ 70°48′46″ |
| Item | Column 1 Name Given by the Répertoire toponymique du Québec or Description |
Column 3 Location Reference (Répertoire toponymique du Québec Reference System) |
|---|---|---|
| 156 | Aux Araignées Lake, within 100 m of its shore and east of a line beginning at a point at 45°28′50.633″ 70°47′33.702″, thence to a point at 45°27′59.326″ 70°47′42.774″ | 45°28′29″ 70°47′18″ |
| 157 | The streams within the marsh of the Aux Araignées River |
45°28′12″ 70°46′58″ |
| 158 | The streams within the marsh of the Des Indiens River |
45°29′15.69″ 70°48′2.67″ |
| 159 | Aux Araignées River, from its outlet to a line beginning at a point at 45°28′01.239″ 70°47′17.840″ thence to a point at 45°28′03.377″ 70°47′18.127″ |
45°28′01″ 70°47′16″ |
| 160 | Des Indiens River, from its outlet to a point at 45°29′27.97″ 70°48′2.96″ | 45°29′13.07″ 70°48′4.93″ |
| Article | Colonne 3 Coordonnées géographiques (système de référence du Répertoire toponymique du Québec) |
|---|---|
| 259 | Point A : 45°22′15,23″ 73°45′13,20″ Point B : 45°22′47,44″ 73°45′07,28″ |
| Item | Column 1 Name Given by the Répertoire toponymique du Québec or Description |
Column 2 Local Name |
Column 3 Location Reference (Répertoire toponymique du Québec Reference System) |
Column 4 Maximum Speed in km/h Over the Ground |
|---|---|---|---|---|
| 339 | Within 100 m of the shore of Portage Lake (see Note 4) | Lac du Portage | 48°39′13″ 67°35′37″ | 10 |
| Item | Column 4 Maximum Speed in km/h Over the Ground |
|---|---|
| 5 | sunrise to sunset, 37 (see Note) sunset to sunrise, 10 (see Note) |
| Item | Column 1 Name Given by the Gazetteer of Canada or Description |
Column 3 Location Reference (Gazetteer of Canada Reference System) |
|---|---|---|
| 10 | The waters of the Columbia River and its tributaries lying within the flood plain of the Columbia River north of a point at 50°21′13.4″ 115°52′51.9″ (approximately 1.6 km northwest of Fairmont Hot Springs) and south and east of a point at 51°28′48″ 117°09′33″, on the northernmost tip of a small island (approximately 1.8 km south of Trans-Canada Highway bridge at Donald) but excluding the waters of Windermere Lake | 50°55′04.3″ 116°22′47.9″ |
Coming into Force
33 These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues
Due to the distinct nature of the issues being addressed in this proposal, issues have been categorized in four sections throughout the document.
Permitting approach under subsections 10.1(1) and 12(1)
Previously, subsection 10.1(1) of the Vessel Operation Restriction Regulations (the Regulations) did not allow the Minister to issue permits for vessels to access restricted waters for the purpose of accessing a historical, cultural, ecological or geological site, nor for construction and/or the maintenance of infrastructure, as these activities were not referenced in the list of purposes under subsection 10.1(1) for which the Minister had the authority to issue permits. For example, infrastructure requiring maintenance, that is located on a body of water that has a restriction prohibiting navigation, could have been delayed, or prevented from occurring because the Minister did not have the express authority to issue a permit for this type of activity.
Subsections 10.1(1) and 12(1) provide the Minister with the authority to issue permits for vessels to operate in a manner that is contrary to the Regulations under certain circumstances, such as for the purpose of conducting scientific research, protecting the environment or holding a sporting, recreational or public event or activity. However, the Regulations did not provide for ministerial discretion or specify any factors for the Minister to consider when reviewing the permit application, such as consideration of the risks to safety, the public interest or the environment; the type, size and intended use of the vessel; as well as the characteristics of the body of water where vessel operation restrictions exist. Stating the factors that may be considered as well as providing the Minister discretion in whether or not to issue a permit will ensure clearer and more effective management of permit applications. Without these changes to the regulatory text, issues could arise with safety, environmental and public interest impacts. By allowing for ministerial discretion at the application stage, higher-risk applications may be rejected, thereby ensuring safety.
New restriction applications
The City of Toronto sought a new restriction in Schedule 2 (Waters on Which Power-driven Vessels and Vessels Driven by Electrical Propulsion Are Prohibited) for a new portion of the Don River designed to protect and attract wildlife habitat, enhance flood mitigation measures and provide an educational setting for its citizens. The local authority requested this restriction as the use of motorized vessels had been identified as a risk to environmental components through noise pollution and vessel strikes with wildlife, including some species at risk, given the relatively narrow, winding and shallow conditions of the river. In addition to those latter features of the river, the wildlife habitat components (e.g. submerged artificial habitats) and surrounding infrastructure (e.g. low bridges; rocky shoals) posed a risk to safe navigation by motorized vessels.
In the province of Quebec, the municipality of Sainte-Paule sought a new Schedule 6 restriction (Waters on Which Power-driven Vessels and Vessels Driven by Electrical Propulsion Are Subject to a Speed Limit) for Portage Lake. The restriction was requested to address safety issues by balancing motorized navigation activities with other recreational water activities (e.g. paddling) on the body of water. Furthermore, the restriction will enhance protection of fragile marine ecosystems.
The lack of restrictions on these bodies of water, whether it be on the use of all types of motorized vessels (power-driven or electric) and/or on maximum speed limits, would increase negative impacts on the environment, public interest and jeopardize safety in some circumstances. For example, the environmental risks that can arise from the unrestricted use of motorized vessels can include erosion and the endangerment of the aquatic and riparian habitat. Safety risks include accidents and fatalities that can arise from the unrestricted use of motorized vessels on bodies of water with a broad range of other users.
Designation authority
To address concerns about boating safety and promote safe boating practices, it is common for municipalities with limited enforcement capacity to request the designation of enforcement personnel not currently authorized by the Regulations to enforce compliance. Most police forces across the country are currently designated under the Regulations. Authorities in the City of Edmonton requested that local enforcement personnel (peace officers) be authorized to enforce the Regulations in the City of Edmonton.
Administrative corrections
In consultation with local authorities and the Standing Joint Committee for the Scrutiny of Regulations (SJCSR), Transport Canada discovered several minor errors and inconsistencies, such as geographical coordinates misrepresenting the body of water impacted by the restriction, in the text of the Regulations.
Background
The Regulations, made pursuant to the Canada Shipping Act, 2001 (CSA 2001), provide the ability to regulate boating activities and navigation in Canadian waters. The restrictions are set out in subsections 2(1) to 2(6) and 11(2) and are registered in the seven schedules to the Regulations, which identify the location of the body of water impacted as well as the type of restriction. Restrictions include
- waters on which all vessels are prohibited;
- waters on which power-driven vessels and vessels driven by electrical propulsion are prohibited;
- waters on which power-driven vessels are prohibited and vessels driven by electrical propulsion are subject to an engine limit;
- waters on which power-driven vessels and vessels driven by electrical propulsion are subject to a speed limit and/or subject to an engine power limit;
- waters on which towing a person on any sporting or recreational equipment, or allowing a person to wake surf, is prohibited except during the permitted hours; and
- waters on which a sporting, recreational or public event or activity is prohibited.
The Regulations enable a person to apply to the Minister for a permit to operate a vessel in waters with navigation restrictions and in a manner contrary to a prohibition if the purpose is listed under subsection 10.1(1), or to hold a sporting, recreational or public event or activity on waters where these activities are prohibited.
Each year, Transport Canada (TC) receives several applications from local authorities to impose or amend restrictions on navigation in order to enhance the safety of navigation, to protect the environment or to protect the public interest. The guideenglishaccessible_pdf.pdf">Local Authorities’ Guide (LAG) [PDF] helps guide local authorities in the preparation of a restriction submission. The LAG includes information on how to clearly describe the problem, tips on finding non-regulatory and regulatory alternatives to the Vessel Operation Restriction Regulations, information on the consultation process, and how to assess the benefits versus costs of the restriction, and advice on enforcement of restrictions. It also helps to ensure that applications are consistent with the guiding principles of the Cabinet Directive on Regulation.
In order to enforce the Regulations, a law enforcement entity must be designated under section 16. A request to be designated as an enforcement officer originates at the local or provincial level. Upon review and approval of the request, the Regulations are amended to include that person or class of persons for enforcement purposes. To ensure compliance with the Regulations, a designated enforcement officer may stop any vessel or direct it to move as specified, stop and board any vessel at a reasonable time, direct a person regarding the operation of equipment on board the vessel and request any information or documents in the possession of any person on board the vessel.
Objective
Permitting approach under subsections 10.1(1) and 12(1)
The objective of the amendments to subsection 10.1(1) is to ensure that legitimate activities (e.g. visiting historical sites and the construction and maintenance of infrastructure) can be carried out on restricted waters.
In addition, the objective of the amendments to subsections 10.1(1) and 12(1) with respect to establishing ministerial discretion and a list of factors to be considered by the Minister is to ensure that activities for which permits are issued are not contrary to the public interest, the protection of the environment, the safety of persons, and/or the safe and efficient navigation of vessels. A specific list of factors has been established to ensure that ministerial discretion is exercised in a fair and consistent manner, in addition to providing transparency for stakeholders.
New restriction applications
The objectives of the new restriction for the identified portion of the Don River are to mitigate shoreline erosion and to help create aquatic and riparian habitat in the area.
The focus of the new restriction for Portage Lake is to increase safety for all water body users and to help protect the marine environment from the effects of motor boating activities.
Designation authority
The objective of the designation of peace officers in the City of Edmonton is to provide for the enforcement of the Regulations in Edmonton.
Administrative corrections
Finally, the objective of the amendments for correcting geographic coordinates is to ensure that the most reliable and up-to-date information is contained within the Regulations, and thereby enabling more effective enforcement of the listed restrictions.
Description
Permitting approach under subsections 10.1(1) and 12(1)
Firstly, amendments to subsection 10.1(1) of the Regulations expand the scope of activities that may be permitted under this section of the Regulations, to include access to historical, cultural, geological, or ecological sites, and supporting the construction and maintenance of infrastructure where access by water is necessary.
The amendments also provide ministerial discretion and new subsections 10.1(1.1) and 12(1.1) to the Regulations that set out the list of factors the Minister must consider when issuing a permit under subsections 10.1(1) and 12(1), prior to authorizing, by permit, access to waters by a vessel, where navigation is usually prohibited and authorizing sporting, recreational or public events or activities in waters where those activities are usually prohibited. The new factors are
- the protection of the public interest;
- the protection of the environment;
- the safe and efficient navigation of vessels;
- the type and size of vessel to which the permit relates;
- the intended use of the vessel; and
- the characteristics of the body of water.
The inclusion of the list of factors the Minister must consider before approving a permit application provides transparency and clarity to applicants and ensures consistency and reliability in the review process. Furthermore, TC continues to apply specific conditions within individual permits to support the protection of the public interest and the environment, help to minimize the risk to the safety of persons, and decrease interference with the safe and efficient navigation of vessels.
New restriction applications
The amendments introduce new restrictions for two bodies of water, one in Ontario and one in Quebec.
Don River, Toronto, Ontario
A new restriction in Schedule 2 (Waters on Which Power-driven Vessels and Vessels Driven by Electrical Propulsion Are Prohibited) will be implemented on a future body of water that will be created through the construction of a new mouth on the Don River in Toronto, Ontario. This major undertaking has been planned for over 20 years by the City of Toronto, in collaboration with federal and provincial agencies, for the Port Lands Flood Protection and Enabling Infrastructure Project. The restriction of all types of motorized vessels (power-driven and electrical propulsion) will be implemented on this new portion of the Don River. An exemption is also being included that will allow a vessel that is permitted by a local authority to access a specified portion of this restricted waterway to dredge at the intersection of the Don River and the Keating Channel.
Portage Lake, Sainte-Paule, Quebec
A new restriction in Schedule 6 (Waters on Which Power-driven Vessels and Vessels Driven by Electrical Propulsion Are Subject to a Speed Limit) sets the maximum speed limit for power-driven and electric propulsion vessels on Portage Lake in Sainte-Paule, Quebec, to 10 km/h within 100 metres of the shore. This speed restriction does not apply to a vessel moving perpendicularly away from the shore while towing a person on water skis or on any other sporting or recreational equipment.
Designation authority
The amendments respond to a request from the City of Edmonton to enable peace officers, employed by the city, to be designated as enforcement officers under section 16 of the Regulations, thereby enabling them to enforce local restrictions.
Administrative corrections
Lastly, the amendments correct geographic coordinates, and in some cases the name and/or description, for two bodies of water in British Columbia, one body of water in Manitoba, three bodies of water in Ontario, and 24 bodies of water in Quebec. These are minor changes with no impact to users of these bodies of water other than providing clearer descriptions and accurate geographic coordinates of each respective restriction.
Regulatory development
Consultation
A general presentation on the proposal was given to stakeholders at the fall 2019 National Canadian Marine Advisory Council (CMAC) meeting of the Standing Committee on Recreational Boating, which took place on November 7, 2019. No comments were received at that time. Stakeholders who participate in these meetings include boating safety associations, law enforcement marine units, boating safety course providers, Canadian and U.S. Coast Guards, industry, academics and others with an interest in recreational boating. A more comprehensive consultation took place at the November 2020 and April 2021 CMAC meetings; however, no comments or questions were received following the presentations.
In addition, stakeholders were consulted online. Invitations to discuss the proposed amendments were sent directly to marine stakeholders and specific Indigenous groups identified through the modern treaty assessment. No comments were received from stakeholders following the 30-day online consultation period that ended December 21, 2020.
Since the amendments to update and correct geographical coordinates and address comments received by the SJCSR were technical and administrative in nature, public consultations on these amendments were not undertaken.
Furthermore, as required by the LAG, applications for new restrictions under the Regulations require comprehensive consultations with stakeholders by local authorities in advance of submitting the restriction requests to TC. These consultations include discussions that do not solely focus on the introduction of restrictions, but also consider alternative, non-regulatory solutions. The local authorities held multiple consultations with residents, businesses and other potentially concerned stakeholders. The feedback received by the majority of participants supported applying for restrictions on boating operations for their respective body of water, since the Regulations are seen as the most viable options for the local authorities moving forward.
The proposed Regulations were prepublished in the Canada Gazette, Part I, on June 12, 2021, followed by a 30-day consultation period. No comments were received.
At prepublication, the proposal included a new Schedule 6 restriction (Waters on Which Power-driven Vessels and Vessels Driven by Electrical Propulsion Are Subject to a Speed Limit) on a 20 km segment of the Richelieu River bordering the communities of Saint-Antoine, Saint-Denis, Saint-Marc, and Saint-Charles (sur-Richelieu), setting a 10 km/h maximum speed limit for power-driven and electric propulsion vessels in this area. In addition, a new restriction in Schedule 7 (Waters in Which Towing a Person on Any Sporting or Recreational Equipment, or Allowing a Person to Wake Surf, Is Prohibited Except During the Permitted Hours) was proposed for the same portion of the Richelieu River. The restriction was to prohibit towing a person on any sporting or recreational towing equipment and to prohibit wake surfing on the identified portion of the River.
In mid-October 2021, three months after the Canada Gazette, Part I, official comment period ended, TC received comments from stakeholders in the Richelieu area, including business owners, regarding the proposed restrictions for a portion of the Richelieu River. TC was also advised that an online petition had been initiated by stakeholders opposing the restrictions. The concerns raised by stakeholders focused on not being sufficiently engaged on the proposed restrictions, which many found to be too restrictive for the targeted issues (e.g. provide navigation safety for all users, and reduce shoreline degradation and erosion) and suggested that alternative solutions could be taken. TC shared these concerns with the sponsoring local authorities who indicated their interest in withdrawing their restriction application and undertaking further local consultations. As such, the Richelieu River restrictions have been removed from the Regulations. Notwithstanding the removal of the proposed restrictions, the local authorities remain committed to addressing the safety and environmental issues identified along the implicated section of the Richelieu River in a way that considers and reflects the needs, interests, and input of local stakeholders.
No other changes have been made to the Regulations since prepublication.
Modern treaty obligations and Indigenous engagement and consultation
In accordance with the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, analysis was undertaken to determine whether the amendments are likely to give rise to modern treaty obligations. This assessment examined the geographic scope and subject matter of the proposal in relation to modern treaties in effect.
No modern treaty obligations were identified in the context of (a) imposing new restrictions on two bodies of water; (b) allowing an additional role for peace officers employed by the City of Edmonton; and (c) addressing outstanding items related to incorrect geographic coordinates. However, for the regulatory amendments related to subsections 10.1(1) and 12(1), engagement with treaty governments was undertaken since the amendments could have links to treaty clauses that required consideration of their advice on matters related to marine areas and permission for determining travel routes in certain circumstances. Impacted Indigenous governments were engaged on November 21, 2020, by electronic correspondence, which outlined the proposed regulatory amendments. Transport Canada invited impacted Indigenous governments to engage, if interested, on the proposed amendments and to pose any questions they might have. No comments were received from treaty governments consulted as part of the 30-day consultation period that ended December 21, 2020.
Instrument choice
Regulatory amendments were needed to ensure clarity about the activities for which permits may be granted to access restricted bodies of water, and to ensure consistency and transparency about the permit application process. The addition of new activities under subsection 10.1(1) with respect to accessing a historical, cultural, ecological or geological site and supporting the construction and maintenance of infrastructure provide a more comprehensive list of activities for which a permit may be issued. Furthermore, the new factors the Minister must consider under subsections 10.1(1.1) and 12(1.1) ensure that the Minister’s new discretionary power is supported by criteria that can be applied fairly and consistently when assessing permit applications. Without these amendments, activities such as construction and maintenance, which should be permitted, would have remained prohibited under the Regulations. In addition, the process for reviewing and issuing permits, i.e. the factors that are considered when assessing a permit application, would have remained unclear for applicants.
The Regulations allow any level of government to ask the federal government to restrict the use of vessels on any body of water in Canada. Local authorities are encouraged to find non-regulatory solutions prior to seeking a regulatory restriction through the Regulations. Through consultations held by local authorities as part of the application process, alternative solutions are explored, but sometimes prove to be ineffective, thereby leaving regulatory restrictions as the only effective alternative. For example, in the case of the restriction for the Portage Lake, alternative models (e.g. educational material, voluntary guidelines) had been assessed and put in practice but were proven to be ineffective in achieving desired goals (e.g. reduced speed, safer navigation around others). Local authorities determined that there were no viable alternatives to establishing restrictions in the Regulations.
In order for peace officers in Edmonton to enforce the Regulations, they must be designated as enforcement officers in the Regulations.
Regulatory analysis
The amendments clarify and expand the permitting process the Minister must follow, including introducing ministerial discretion and an accompanying framework; increase the scope of activities that may be permitted under subsection 10.1(1) of the Regulations; introduce four new vessel restrictions to the Regulations; and respond to requests by the SJCSR. Expanding the list of activities permitted under subsection 10.1(1) will introduce administrative costs to businesses and individuals who must apply for permits and government costs for review and approval of the applications. The incremental costs of the new restrictions in the Regulations will be borne by the local authorities that applied for the four new restrictions and the body of water users. In addition, the amendments are expected to protect the environment and to improve the safety of all users of the bodies of water. A detailed qualitative analysis on these benefits is provided below.
The costs and benefits for the amendments have been assessed in accordance with the Treasury Board of Canada Secretariat (TBS) Canadian Cost-Benefit Analysis Guide and can be found on the Policy on Cost-Benefit Analysis page through the Cabinet Directive on Regulation. Where possible, impacts are quantified and monetized, with only the direct costs and benefits for stakeholders being considered in the cost-benefit analysis.
The benefits and costs associated with the amendments are assessed based on comparing the baseline scenario against the regulatory one. The baseline scenario depicts what is likely to happen in the future if the Government of Canada does not implement the amendments. The regulatory scenario provides information on the intended outcomes as a result of the amendments. Further details on these two scenarios are presented below.
Analytical framework
The analysis estimated the impact of the amendments over a 10-year period from 2021 to 2030. Unless otherwise stated, all costs are expressed in present value (2019 Canadian dollars, discounted to 2020 at a 7% discount rate).
Baseline and regulatory scenarios
The Regulations restrict vessel activities and navigation in specified Canadian waters as set out in the schedules to the Regulations. Under the baseline scenario, the Regulations allow for permits to be issued to provide access to areas with restrictions, in order to operate a vessel for specific activities (e.g. aquaculture, research, educational purposes, protecting the environment) or in order to hold a sporting, recreational or public event, or activity (e.g. regattas and dragon boat races). In the baseline scenario, the two bodies of water of the Don River in Toronto, Ontario, and Portage Lake in Sainte-Paul, Quebec, were not included in the regulated schedules.
Under the regulatory scenario, the amendments expand the list of activities that may be carried out in waters where a restriction exists by permit to include access to historical, cultural, ecological or geological sites, and also to undertake activities needed to support the construction and maintenance of infrastructure. A list of factors the Minister must consider before approving a permit is included in the amendments to enhance clarity and transparency. The amendments introduce new restrictions to the above-mentioned bodies of water in the schedules. The new restriction on the future body of water on the Don River will restrict access by all motorized vessels (power-driven or electrical propulsion). A restriction to limit speed is being applied on Portage Lake. Amendments are also included to address minor administrative updates.
Benefits and costs
Expanding the list of activities that are included to be eligible for permits will result in administrative costs to applicants who need to access areas where a permit is required. These administrative costs could affect businesses and/or individuals. It is estimated that the amendments will result in an administrative cost of $17,598 to businesses and individuals, over the 10-year analytical time frame. Similarly, the Government of Canada will incur costs for reviewing and approving these applications. It is estimated that the Government of Canada will incur a cost of $30,516 over the 10-year analytical time frame.
The local authorities seeking the two new restrictions for the Don River and Portage Lake will incur some costs, as the local authorities are responsible for erecting and maintaining signage (as specified in the Regulations) in the areas where the restrictions are being implemented. They are also responsible for ensuring proper enforcement for the new restrictions. There will be a cost to recreational boaters on the restricted areas of Portage Lake for loss of leisure opportunities. The amendments will result in a total compliance cost of $30,402 over the 10-year analytical time frame.
In total, the amendments will result in a cost of $78,516 from 2021 to 2030, where $48,000 will be borne by the impacted stakeholders and $30,516 would be incurred by the Government of Canada.
The amendments to the permitting approach expand the number of activities allowed in those areas that are currently restricted. Establishing ministerial discretion in the consideration for granting a permit ensures that decisions about permitting are completed in a transparent, fair and consistent manner. The amendments to correct geographic coordinates ensure that the most reliable and up-to-date information is contained within the Regulations. In addition, the amendments concerning new restriction applications are expected to benefit the environment, protect the public interest, and help to ensure safety for those waterway users.
Benefits
The amendments are expected to improve the overall safety for waterway users and align with the public interest. The total benefits associated with the amendments are not able to be monetized or quantified; however, a detailed qualitative benefit analysis is provided below.
Permitting approach under subsections 10.1(1) and 12(1)
The amendments to subsection 10.1(1) to include the authority to apply for a permit to access historical, cultural, geological, or ecological sites, and to support the construction and maintenance of infrastructure expand the number of activities allowed in those areas that are currently restricted. Furthermore, supporting the construction and maintenance of infrastructure will in turn help in ensuring overall water safety and preserving the quality of surrounding ecosystems. The inclusion of a list of factors to be considered by the Minister in subsections 10.1(1) and 12(1) is intended to provide clarity and transparency for stakeholders.
New restriction applications
Limiting navigation to non-motorized vessels at all times on the Don River (with the exception of emergency services and environmental management/monitoring vessels) in the new naturalized river valley is important to protect the environment and the safety of users.
The Don Mouth Naturalization and Port Lands Flood Protection Project – Environmental Assessment, developed by municipal officials leading this project, qualitatively demonstrates that the environmental components at risk from motorized boat traffic are vast. The assessment indicated that the amendments would protect and attract wildlife habitat. For example, habitat features, including bird boxes and turtle nesting areas, are adjacent to the river valley where noise from motorized crafts can deter wildlife from using these features. Further, the river through the naturalized channel has a low-level base flow, and it does not have the ability to flush petroleum and oil leakage from gas-powered engines. This could cause harm to the aquatic environment that the project is working hard to promote. In addition, water quality would be impacted by motors stirring up sediments, given the relative shallowness of the channel. Lastly, the Don River area is home to several turtle species at risk, including Blanding’s Turtle, Map Turtles, Snapping Turtles and Painted Turtles. Without the amendments, these species at risk, according to the Government of Canada’s Species at Risk Public Registry, would be particularly susceptible to powered vessel strike given the relatively narrow, winding and shallow conditions found within the channel. By including the new portion of the Don River within the Regulations, the river, wetlands, banks and habitat structure will attract these turtle species.
In terms of user safety, the Don River mouth is designed to enhance habitat and will include wetlands, coves, rocky shoals, submerged vegetation and other aquatic features. Some of these features will not be visible from the surface and could pose risks to users of motorized vessels should they be allowed to enter the river valley. Including the water body in the amendments will help mitigate safety concerns, given the confined channel width and low-lying pedestrian bridges and windy river channel conditions.
With respect to the restriction on Portage Lake, the benefits are expected to not only focus on water safety for all users, but also contribute to the protection of the environment. Implementing a maximum speed limit on Portage Lake is expected to balance the right to navigate with the public interest in recreational water activities in specified areas. The local authority expects that the amendment will allow for the harmonization of various water activities by leaving room for motorized vessel activities, while indirectly encouraging human-powered activities (e.g. paddling, swimming), creating a safer water body for all users.
In addition, it is expected that reduced speeds in areas of navigation will bring environmental benefits, such as less disruption of sediment, which will improve water quality. This is expected to be a benefit for the currently fragile Portage Lake marine ecosystem. This will not only provide environmental benefits in terms of reduced shore degradation and erosion, but also protect properties and infrastructure along the shoreline.
Designation authority
Designating peace officers employed by the City of Edmonton as enforcement officers under the Regulations is expected to result in enhanced oversight of the city’s bodies of water to help ensure safe navigation during boating seasons, by allowing the municipality to count on additional resources with the ability to enforce the Regulations.
Administrative corrections
The amendments to correct geographic coordinates and address comments by the SJCSR ensure that the most reliable and up-to-date information is contained within the Regulations. These amendments are administrative in nature. There may be marginal safety benefits realized as these corrections are expected to help body of water users identify the precise locations of the restrictions and to act accordingly in those areas.
Costs
The amendments are expected to result in a total cost of $78,516 from 2021 to 2030. This cost is broken as follows:
- $17,598 in administrative costs to businesses and individuals, for the time it might take an applicant to fill out a permit application;footnote 2$30,402 in compliance costs to local authorities who are implementing new restrictions on the two bodies of water identified above; and
- $30,516 in costs to the Government of Canada for review and approval of permit applications.
Permitting approach under subsections 10.1(1) and 12(1)
Expanding the scope of activities in subsection 10.1(1), to include access to historical, cultural, geological, or ecological sites and also to undertake activities needed to support the construction and maintenance of infrastructure, allows the Minister to consider issuing a permit when a request for access to a restricted site is made for that purpose. The total cost of this amendment is $48,114 from 2021 to 2030 which accounts for the administrative cost to business/individual to apply for a permit and the Government of Canada’s administrative costs to review and approve permit requests for these reasons.
Permits can be issued to either commercial operators or individuals. The analysis assumes that, each year beginning in 2021, approximately 11 new permits will be issued to businesses and 181 new permits will be issued to individuals.footnote 3 It is expected that it will take businesses approximately 2 hours and individuals 20 minutes to complete and submit a permit application. The effort for businesses is assumed to be divided between a managerfootnote 4 and office support. As a result, the administrative cost to businesses is estimated to be $5,479 over the 10-year analytical time frame. To estimate the administrative cost to individuals for completing a permit application, an average Canadian salary is used. As a result, the administrative cost to individuals is estimated to be $12,119 over the 10-year analytical time frame. Together, the total administrative cost to business and individuals is an estimated $17,598 from 2021 to 2030.
Transport Canada will be required to review and approve each of the submitted applications. It is expected that the time required to review and approve a permit request will be approximately 2 hoursfootnote 5 for business applications and 20 minutesfootnote 6 for individual applications. This will result in an incremental cost of $8,670 for the approval of applications from businesses and $21,846 for the approval of applications from individuals, resulting in a total cost of $30,516 to the Government of Canada from 2021 to 2030.
New restriction applications
The amendments aim to ensure that the safety of users of the bodies of water and their ecosystems are maintained and protected. Compliance with the amendments will result in an incremental cost to the local authorities of the Don River and Portage Lake of $30,402 over the 10-year analytical time frame.
It is expected that both local authorities of the water bodies previously mentioned will incur an implementation costs in year one (2021) for installation of signage, enforcement, raising awareness and educating the public about the existence of the new restrictions. From consultations with subject matter experts at TC and affected stakeholders, the initial implementation costs per water body are estimated to be $3,738 for the Don River and $14,486 for Portage Lake for the first year. Together, these costs total $18,224 for the two local authorities in 2021. The initial implementation cost for the Don River is lower due to the investment already contributed by the project lead.
In addition to the initial implementation cost, it is expected that starting in 2022, the local authority of the Don River will incur annual maintenance costs, comprising of signage and buoy upkeep and enforcement, totalling $12,178. The proponents of Portage Lake conferred that any annual maintenance costs would be negligible since maintenance will be done by local volunteers, which is at no cost to the local authorities.
Based on the assessments provided by the local authorities, in Portage Lake, the daily average is 100 vessels on the water (47% motor propulsion / 53% human propulsion). Population estimates during boating season are 125 locals and 175 seasonal residents. Portage Lake boaters have to forgo the opportunity to operate motorized vessels over 10 km/h 100 metres from shore, excluding taking off for watersports purposes. Therefore, some of these recreational boaters will incur loss of leisure because they will no longer be allowed to operate their boats beyond the restrictions. However, this loss of leisure was not monetized due to lack of data. In addition, it is expected that the benefits of the amendments to affected stakeholders will exceed this cost.
Small business lens
The small business lens applies, as there are impacts on small businesses associated with the regulatory amendments. Based on consultations with stakeholders, it is likely that all 11 businesses impacted by the permitting approach are small businesses, where a small business is defined by one to 99 employees, or less than $5 million in annual gross revenues. Although it is expected that an additional 181 applications will be submitted by individuals, they are not considered in the small business lens analysis, as they do not meet the definition of a small business. That being said, TC has not considered more flexible approaches to minimize the cost impact on small businesses, as the number of affected stakeholders is already limited. Over the 10-year analytical time frame, the amendments estimate a total cost of $498 per business, annualized to be $71 per business. Despite the costs, these businesses now benefit from being able to seek permitted access on these restricted waters.
One-for-one rule
The one-for-one rule applies since there is an incremental increase in administrative burden on businesses, and the regulatory proposal is considered an “IN” under the rule. Using the methodology prescribed in the Red Tape Reduction Regulations, the implementation of the amendments is expected to result in an annualized cost of $424, or $38.57 annualized administrative cost per business to the affected stakeholders (present value in 2012 Canadian dollars, discounted to the base year of 2012 at a 7% discount rate). These administrative costs are a result of the expanded list of activities that allow businesses to apply for permits to access otherwise restricted waters.
Regulatory cooperation and alignment
The amendments are not in relation to work or commitments under a formal regulatory forum.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a detailed strategic environmental assessment is not required.
Gender-based analysis plus
The amendments are not expected to result in any negative or disproportionate impacts on any specific groups considered under the gender-based analysis plus (GBA+) lens. Similar to how rules of the road apply to all individuals driving a vehicle or using a roadway, these restrictions impact every person in charge of a vessel while navigating in an area covered under the Regulations, including all passengers and any users of a body of water with navigational restrictions. Due to a lack of data on users of bodies of water across the country, a qualitative assessment of gender, demographic and regional characteristics was the only feasible option for analysis. At any given time, the demographic characteristics of users of bodies of water can differ significantly. It is similarly difficult to identify specific beneficiaries of the restrictions; however, the enhanced safety on the waterways, reduced negative environmental impacts and protection of the public interests will inevitably provide positive impacts to local users of the bodies of water, adjacent municipalities, including Indigenous communities, and the surrounding environment.
Consultations held with stakeholders, including Indigenous communities, by local authorities as part of their application process and consultations held by TC did not identify any concerns about differential impacts on the basis of identity factors such as gender, race, ethnicity, sexuality, age, disability, resulting from these amendments.
Implementation, compliance and enforcement, and service standards
The Regulations came into force upon registration.
Stakeholders are now able to make applications to access restricted waters based on the new criteria. TC’s service standard for permit applications is 30 days.
In addition, local authorities in Ontario and Quebec have been informed of the coming into force of the Regulations and of their responsibilities as local authorities now administering restrictions on bodies of water under their jurisdiction, such as
- informing the public and waterway users about the restrictions;
- creating, installing and maintaining signage, including incurring all costs; and
- ensuring enforcement.
Matters pertaining to navigation and shipping fall under the jurisdiction of the federal government, and the philosophy behind the Regulations is one of partnership between federal, provincial and local governments. Through an existing program, regional TC staff provide regulatory briefings and other support to assist local enforcement agencies in their functions.
In anticipation of the amendments, TC, through the applicable regional Office of Boating Safety (OBS) staff, has already provided training to the newly designated enforcement officers now authorized to enforce the Regulations in the City of Edmonton. Regional OBS officials are available to provide additional training or support as required. Enforcement officers have a range of tools available to them and the latitude to apply an appropriate tool to a particular violation. These tools include, but are not limited to, providing educational information, fostering awareness of what constitutes safe boating, the ability to issue a warning or multiple warnings and, if required, issuing tickets with fines. The decision on how to proceed is left solely to the judgment of the enforcement officer. The table in section 16 of the Regulations sets out the persons or classes of persons that are appointed or specified as enforcement officers under these Regulations, and section 17 further details the powers delegated to them.
The Contravention Regulations, made pursuant to the Contraventions Act, set out prescribed fine amounts for contraventions of regulations, including regulations made under the CSA 2001. A schedule to the Contraventions Regulations sets out specific contravention amounts to a maximum of $500 for violations. Enforcement is by way of summary conviction or ticketing under the Contraventions Act.
Contact
VORR Manager/Senior Policy Advisor
Legislative, Regulatory and International Affairs
Marine Safety and Security
Department of Transport
Place de Ville, Tower C
330 Sparks Street, 11th Floor
Ottawa, Ontario
K1A 0N5
Email: MSSRegulations-ReglementsSSM@tc.gc.ca