Order Exempting Certain Navigable Waters Located in Newfoundland and Labrador from the Application of Sections 22 and 23 of the Canadian Navigable Waters Act: SOR/2026-111

Canada Gazette, Part II, Volume 160, Number 12

Registration
SOR/2026-111 June 4, 2026

CANADIAN NAVIGABLE WATERS ACT

P.C. 2026-551 June 4, 2026

Whereas the Minister of Transport has received an application to exempt the navigable waters listed in the schedule to the annexed Order from the application of sections 22footnote a and 23footnote b of the Canadian Navigable Waters Act footnote c;

And whereas the Governor in Council is satisfied that this exemption would be in the public interest;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Transport, makes the annexed Order Exempting Certain Navigable Waters Located in Newfoundland and Labrador from the Application of Sections 22 and 23 of the Canadian Navigable Waters Act under subsection 24(1)footnote b of the Canadian Navigable Waters Act footnote c.

Order Exempting Certain Navigable Waters Located in Newfoundland and Labrador from the Application of Sections 22 and 23 of the Canadian Navigable Waters Act

Exemption

Navigable waters

1 The navigable waters listed in the schedule to this Order are exempt from the application of sections 22 and 23 of the Canadian Navigable Waters Act.

Coming into Force

Publication

2 This Order comes into force on the day on which it is published in the Canada Gazette, Part II.

SCHEDULE

(Section 1)

Navigable Waters

PART 1

Lakes
Item

Column 1

Name

Column 2

Approximate Location
1 Lake 1 52°52′53.61″ N, 66°46′51.20″ W
2 Lake 3 52°51′52.56″ N, 66°47′9.78″ W
3 Lake 4 52°51′42.25″ N, 66°47′16.18″ W
4 Lake 5 52°51′26.64″ N, 66°47′4.23″ W
5 Lake 7 52°51′26.35″ N, 66°46′50.88″ W
6 Lake 8 52°51′6.84″ N, 66°46′55.63″ W
7 Lake 10 52°51′1.54″ N, 66°46′29.02″ W
8 Lake 17 52°51′27.86″ N, 66°46′24.92″ W
9 Lake 18 52°51′26.53″ N, 66°46′0.44″ W
10 Lake 19 52°51′6.18″ N, 66°45′48.44″ W

Note: The water boundary of each lake includes the mouths of all connecting waterways.

PART 2

Other Navigable Waters
Item

Column 1

Name

Column 2

Approximate Downstream Point

Column 3

Approximate Upstream Point
1 Stream 9 52°51′11.21″ N, 66°45′54.90″ W 52°51′8.80″ N, 66°45′52.53″ W
2 Stream 16 52°51′15.81″ N, 66°46′10.14″ W 52°51′11.97″ N, 66°46′27.79″ W
3 Stream 17 52°50′54.20″ N, 66°45′35.15″ W 52°50′32.29″ N, 66°45′20.17″ W

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

Tacora Resources Limited, the mining project proponent (the proponent), is undertaking an expansion of its iron ore mining and processing operations in Wabush, Newfoundland and Labrador, and will need to secure the additional tailings-management capacity required to sustain ongoing mining operations resulting from the expansion. The expansion involves using an area south of the existing mine, known as Flora South, for the deposition of mining tailings.

There are 13 navigable waterbodies in the mine’s vicinity. To facilitate mine expansion and operation, tailings will be deposited into, and water will be removed from, these navigable waters, resulting in the permanent navigation loss on all 13 affected waterbodies.

The Canadian Navigable Waters Act (CNWA) prohibits depositing materials or dewatering that extinguishes navigation. However, under the CNWA, an exemption from the prohibition against depositing materials or dewatering can be granted, if determined to be in the public interest to do so.

A detailed review and analysis of the proponent’s request for an exemption from the prohibitions against depositing materials and dewatering indicates that it would be in the public interest to permit the depositing and dewatering activities that would extinguish navigation on the 13 navigable waters, rendering navigation impracticable. Consequently, an exemption order is required to allow for depositing materials into, and dewatering of, the 13 navigable waters, thereby extinguishing navigation.

Background

Scully Mine Expansion Project

The iron ore Scully Mine is located in Wabush, Newfoundland and Labrador, in the remote Western Labrador region near the Quebec border. The mine is located just north of the Town of Wabush and near Labrador City, which together form the small urban area of Labrador West (population: just over 9 300).footnote 1footnote 2 Labrador West is approximately 1 200 kilometres northeast of QuĂ©bec, Quebec, and 2 000 kilometres from St. John’s, Newfoundland and Labrador. Iron ore from the mine is a key input for steel production.

The proponent proposes to expand the existing iron ore mine, and over an estimated 22-year period, the project is expected to gradually fill and dewater 13 small, unnamed navigable waters within the Flora Lake watershed, permanently eliminating their navigability. The proposed expansion increases the mine’s footprint from 3 152 hectares to a maximum of 4 563 hectares — an increase of 1 411 hectares (45%). The project supports the production of low-carbon iron, a key input for sustainable steelmaking, low-carbon infrastructure, renewable energy systems, and clean energy technologies such as electric vehicles.

The mining project is anticipated to create 334 direct jobs over the life of the project, with additional indirect employment benefits from increased demand for local goods and services. The proponent reports that 96% of its workforce is sourced locally.

Waterbodies impacted

To facilitate the mine expansion and ongoing operations, the proponent will use an area south of the existing mine — known as Flora South — for the deposition of mining tailings. Flora Lake, a key component of the Flora South watershed, has been divided into North and South Basins due to tailings accumulation over time. The Scully Mine’s Tailings Impoundment Area encompasses both basins and surrounding tailings-covered areas.

Currently, thickened tailings are deposited into the South Basin, with discharge flowing into the North Basin and subsequently into the Flora River system. The proposed expansion would extend beyond the existing Tailings Impoundment Area in order to continue the disposal of tailings. Tailings deposition, combined with water removal from parts of the mine site, is expected to gradually fill and dewater 13 small, unnamed navigable waters, permanently extinguishing their potential for navigation.

For purposes of determining whether each waterbody met the CNWA’s “navigable water” definition, an assessment was conducted by Transport Canada (TC) that examined both current use and the reasonable likelihood of use of the waterbodies, including historical Indigenous use and the potential for future use.

Indigenous communities stated that the waterbodies were used in the past for navigation but are not currently used for navigation.footnote 3 Evidence demonstrates that use occurred between at least 1997 and 2012.footnote 4 One Indigenous community stated that the existing mining operation’s proximity to the waterbodies means they would not use these waterbodies in the future.footnote 5 However, another Indigenous community indicated that it would use the waterbodies in the future, confirming the reasonable likelihood for potential future use.footnote 13

Under the “navigable water” definition, use is determined based on evidence of current or reasonable likelihood of use for water transport or travel, whether for commercial, recreational, or for the exercise of Indigenous rights purposes. Based on this evidence of past use, it follows that each waterbody would be physically capable of sustaining navigation currently and in the future. It appears that navigation use has diminished over time due to decades of mining activity in the area. Evidence of past use and physical capacity to sustain water travel, together with Indigenous community statements that the waterbodies are currently not used, suggests that current navigation use is so low that it could likely be characterized as negligible. One Indigenous community’s statement that it would not use the waterbodies in the future, and another’s stating that it would use in the future, further suggests that the presence of the existing mining operations so close to the waterbodies has discouraged use, so much so that future use, while confirmed, would likely continue to be negligible.

The assessment also examined the accessibility of waterbodies. Because the Crown is the sole riparian owner, i.e. a landowner whose property connects to a body of water, the waterbodies were determined to be accessible for the purposes of the CNWA.

On this basis, the 13 bodies of water that will be impacted by the mine expansion were determined to meet the CNWA’s “navigable water” definition. As a result, the CNWA applies to these waterbodies, and an exemption is required for any prohibited activities under the Act, such as depositing or dewatering.

Environmental assessments

The project was subject to a provincial environmental assessment (EA), which began on July 21, 2021, and concluded on April 4, 2022, releasing the project from the EA process and allowing the proponent to proceed with permitting and implementation, subject to conditions. In addition, the Impact Assessment Agency of Canada (IAAC) reviewed the project for Impact Assessment Act purposes, including its potential impacts on Indigenous rights and title, current use, environmental changes, archaeological sites, and health, social, and economic conditions, informed by consultations with Indigenous communities. On July 20, 2022, the Minister of the Environment and Climate Change determined that the project did not warrant designation. This means that it is not expected to cause significant adverse effects within federal jurisdiction, as any potential adverse effects are expected to be mitigated by the project’s design, standard mitigation measures, and existing legislative requirements. In addition, the proponent must comply with all conditions imposed by the provincial EA process and obtain any required federal authorizations.

Exemption from prohibition against depositing materials and dewatering

An exemption to the prohibitions against depositing materials or against dewatering that extinguish navigation may be granted by the Governor in Council, if in the public interest to do so. If granted, the exemption would permit depositing materials (i.e. infilling) into, or dewatering (e.g. draining) of, a navigable water that extinguishes navigation.

Objective

The objective is to exempt, by order, the 13 navigable waters from the CNWA prohibitions against depositing materials into, or dewatering of, a navigable water, thereby enabling and facilitating the proponent’s mining operations.

Description

The Order exempts the 13 navigable waters from the application of subsections 22(1) and 23(1) of the CNWA. Thereby permitting the deposit of materials (e.g. tailings) into, and dewatering of, the 13 navigable waters to facilitate mining operations. The depositing of materials and dewatering will result in making navigation impracticable in the 13 bodies of water.

Regulatory development

Consultation

Indigenous and public consultations were carried out for the proposed Scully Mine Expansion Project. Consultation activities took place between 2017 and 2024 and included direct consultations with Indigenous communities led by TC, project-led consultations conducted by the proponent, and Indigenous and public consultations undertaken as part of the federal impact assessment process.

Information specific to Indigenous engagement and consultation relevant to the exemption order is outlined below under the section titled “Indigenous engagement, consultation and modern treaty obligations.”

Public input was collected through the provincial environmental assessment process and subsequently shared with the federal IAAC. During that process, the Town of Wabush, the Town of Labrador City, and local residents were engaged. The concerns raised related to environmental effects, most notably dust, and the decrease in air quality, and potential contamination of drinking water, impacts on aquatic species and migratory birds, rehabilitation, and mine closure. Several mitigation measures were implemented to address these concerns through the provincial environmental assessment process. No navigation-related concerns were identified.

During the assessment to determine if the project needed a designation under the Impact Assessment Act, IAAC consulted with government experts within areas of federal jurisdiction to identify any potential effects that could require federal consideration or authorization. This engagement ensured alignment between the provincial assessment and federal requirements related to species protection, water quality, navigability, and Indigenous rights under federal law. Based on the project design and proposed mitigation measures, IAAC indicated that potential adverse effects within federal jurisdiction — including impacts on fish habitat, migratory birds, species at risk, and navigable waters — would be limited and manageable and could be addressed through standard federal authorizations. These include an exemption order for prohibitions under the CNWA, Fisheries Act authorizations, the use of a waterbody for tailings disposal under the Metal and Diamond Mining Effluent Regulations, from Environment and Climate Change Canada, and an Explosives Act licence or permit from Natural Resources Canada.

Taking this input into account, IAAC concluded that the project is unlikely to result in significant adverse environmental effects within federal jurisdiction. No other federal departments expressed concerns with respect to the proposed exemption order.

Exemption from prepublication in the Canada Gazette, Part I

Prepublication is intended to provide a final opportunity to obtain comments on a proposal, determine whether any stakeholders were overlooked in the consultation process, and examine the extent to which the proposal is in keeping with the original policy intent. Local and Indigenous communities are those most directly impacted by mining projects and as a result, those most in need of being engaged through consultations.

Between 2017 and 2024, the public and local Indigenous communities were consulted by the project proponent, IACC and TC, on the overall proposed project, including on the dewatering and depositing of materials that are the subject of this exemption. Due to the extensive consultations, it is unlikely that any additional comments would be received from stakeholders at prepublication.

Finally, the regulatory text intended for publication in the Canada Gazette, Part I, consisted only of the list of 13 waterbodies to be exempted through this exemption order. As the text did not include explanatory or interpretive detail, it is assumed that the list of waterbodies was unlikely to give rise to misinterpretation or implementation challenges for stakeholders. Consequently, it is also unlikely that any additional comments would have been received from stakeholders.

Considering all of the above, the exemption order was not prepublished in the Canada Gazette, Part I.

Indigenous engagement, consultation and modern treaty obligations

Section 5 of the United Nations Declaration on the Rights of Indigenous Peoples Act requires the Government of Canada to take, in consultation and cooperation with Indigenous peoples, all measures necessary to ensure that existing and new laws of Canada, including regulations, are consistent with the United Nations Declaration on the Rights of Indigenous Peoples.

The proposed Scully Mine Expansion Project overlaps the lands of five Indigenous communities.footnote 6 Between 2017 and 2024, these communities were consulted by the project proponent, IAAC and TC, on the overall project, including about the prohibited depositing and dewatering activities subject to the proposed Governor in Council exemption.

TC-Led consultation

TC’s direct consultations specifically focused on the use of the affected waterbodies for transportation and travel. Indigenous communities provided input on the use of these waterbodies, drawing on Indigenous knowledge and, in some cases, historical land-use reports and maps to inform their perspectives.

While Indigenous groups raised several environmental and cultural concerns regarding the project — such as air quality and habitat loss in the Flora South watershed — no navigation-specific issues were identified. Communities noted that practical navigation in the area has ceased due to decades of mining activity, changes to the landscape, restricted access, and the physical characteristics of the waterways. The environmental and cultural concerns raised fall outside of TC’s jurisdiction and were addressed through the federal and provincial environmental assessment processes outlined below.

Importantly, and consistent with information gathered through proponent-led consultations and the provincial and federal environmental assessment processes, no navigation-specific concerns were identified by Indigenous communities.

In accordance with the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an analysis was undertaken to determine whether the proposal is 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 and found no implications or impacts on modern treaties.

Additional consultations: proponent-led and federal/provincial impact and environmental assessments

Indigenous community concerns identified during proponent-led and IAAC consultations were primarily related to tailings dam stability, emergency response planning, and potential environmental effects from tailings deposition and dewatering. These concerns included, for example, environmental impacts such as dust and decreased air quality, potential contamination of drinking water, impacts on aquatic species and migratory birds, and matters related to site rehabilitation and mine closure.

Mitigation measures outlined in the proponent’s environmental assessment submission to the Government of Newfoundland and Labrador were considered sufficient to address these concerns.

Based on these consultations and given the project design, proposed mitigation measures, and ongoing engagement with Indigenous communities, IAAC concluded that designation under the Impact Assessment Act would not be required, as potential adverse effects on Indigenous rights and interests within federal jurisdiction are limited and manageable. No navigation-specific concerns were identified, and existing regulatory processes, combined with project-specific mitigation measures, are sufficient to manage potential impacts.

Instrument choice

Non-regulatory options are not feasible, as the only way to exempt from the prohibitions against depositing and dewatering that extinguish navigation is through an exemption order approved by the Governor in Council; thus, a regulatory change is the only option available.

Regulatory analysis

The exemption order will permit depositing materials into, and dewatering of, the 13 navigable waterbodies without the proponent contravening the prohibition against depositing and dewatering under the CNWA. The costs and benefits described below pertain solely to the exemption order and do not include impacts associated with the mine itself, as those impacts fall outside of the exemption order’s scopefootnote 7.

Analytical framework

Benefits and costs associated with the exemption order are assessed by comparing the baseline scenario against the regulatory scenario. The baseline scenario depicts what is likely to happen in the future if the exemption order was not made. The regulatory scenario provides information on the expected outcomes of the exemption order.

Between July 2021 and April 2022, the project underwent a provincial environmental assessment, resulting in its conditional approval by the Newfoundland and Labrador Minister of Environment and Climate Change.footnote 8 Subsequently, in July 2022, following a request for federal designation, the Minister of Environment and Climate Change determined that the Scully Mine Expansion Project did not warrant designation under the Impact Assessment Act,footnote 9 as its potential adverse effects could be effectively managed through existing provincial and federal regulatory processes and the mitigation measures imposed by the province in its approval conditions.

Compliance with applicable legislation, such as the Metal and Diamond Mining Effluent Regulations under the Fisheries Act, coupled with the mitigation measures outlined by the province and in the project’s Environmental Assessment Report, will help limit or offset the impacts of this exemption order on the environment and Indigenous communities. These measures include a Fish Habitat Compensation Plan (PDF) required under the Fisheries Act. As these actions stem from existing requirements and project approval — rather than the exemption order — such costs are excluded from the analysis. As a result, the incremental costs associated with the exemption order, and the related depositing and dewatering, are expected to be minimal and have been presented qualitatively.

Following the Policy on Cost-Benefit Analysis of the Treasury Board Secretariat, the scope of this analysis is at the societal level, analyzing costs and benefits attributed to Canadians.

Stakeholder profile

The primary stakeholders affected by the proposed Scully Mine Expansion Project are the five Indigenous communities whose lands overlap the project area.footnote 6 The project proponent is also a stakeholder, as the exemption order enables the continuation of the project in an economically viable manner.

Baseline and regulatory scenarios

Under the baseline scenario, the exemption order is not in place; the 13 navigable waters in Wabush, Newfoundland and Labrador, would not be dewatered or used for the depositing of materials, and, therefore, navigation on the waterbodies would not be extinguished. The mine’s expansion project would not be possible, as the depositing of materials and dewatering would contravene subsections 22(1) and 23(1) of the CNWA and there is no feasible alternative method for this phase of the project.

The baseline scenario also includes the July 2022 determination by the federal Minister of Environment and Climate Change that the project does not require designation under the Impact Assessment Act, compliance with applicable legislation, as well as mitigation measures that must be met by the proponent to reduce impacts on the environment and Indigenous communities.

Under the regulatory scenario, the exemption order is made, allowing the mining project proponent to dewater and deposit materials into 13 navigable waters in Wabush, Newfoundland and Labrador. As a result, the mining project would be able to advance, and there would be impacts from dewatering and depositing on the environment and Indigenous communities.

Further, under the regulatory scenario, the project remains non-designated under the Impact Assessment Act, compliant with applicable legislation, and the mitigation measures that must be met by the proponent to reduce the impacts on the environment and Indigenous communities continue to apply.

Benefits

The exemption order will allow the proponent to advance the mining project in an economically feasible manner. While the exemption order will not directly result in economic benefits to the local economy from the mining project, it will support the implementation of the project.

Costs

The CNWA requires that an application for exemption be submitted by the proponent. However, these application costs are excluded, since they were incurred prior to registration of the exemption order and are considered sunk costs. In addition, dewatering and depositing will result in impacts on the environment and Indigenous communities. During consultations, Indigenous communities indicated that the waterbodies are not currently in use due to proximity of mining activities; however, one Indigenous community stated that it would use waterbodies in the future.footnote 3 Based on these statements about current and future use, together with past use evidence, and the physical capacity to sustain water travel, TC has assessed that current navigation use is likely negligible for both Indigenous communities and the general public, and that future use is also expected to remain negligible. Consequently, no measures to mitigate navigation impact are necessary.

Due to existing requirements, including the implementation of mitigation measures, any incremental impacts generated by the exemption order are anticipated to be minimal. The proponent has maintained ongoing engagement with the Innu Nation since 2019 and has an Impact and Benefits Agreement in place that includes provisions for environmental monitoring and economic opportunities. The proponent is working to implement agreements with the remaining Indigenous communities.

Small business lens

Analysis under the small business lens concluded that no small businesses would be impacted. The proponent does not meet the definition of small business, specifically one that has fewer than 100 employees or less than $5 million in annual national revenue.

One-for-one rule

The one-for-one rule does not apply, as there would be no incremental change in administrative burden on businesses as a result of the exemption order.

Regulatory cooperation and alignment

The exemption order is not related to any commitment under a formal regulatory cooperation forum nor is it intended to address non-alignment with other jurisdictions. The exemption order is confined to a geographic location within Canada and specifically confined to the 13 navigable waters within this location.

International obligations

The exemption order is not relevant to Canada’s international obligations.

Effects on the environment

In accordance with the Cabinet Directive on Strategic Environmental and Economic Assessment and the TC Policy Statement on Strategic Environmental and Economic Assessment (2024), the strategic environmental and economic assessment process was followed for this proposal, and a Climate, Nature, and Economy Lens was completed.

The proposal is exempt from further assessment because the proposal is subject to federal environmental or impact assessment legislation, such as the Impact Assessment Act or the Canadian Environmental Assessment Act.

Gender-based analysis plus

The exemption order under the CNWA will allow the expansion of the Scully Mine by enabling dewatering and tailings deposition in 13 navigable waters in Wabush, Newfoundland and Labrador. While the exemption order itself does not create direct benefits, the associated mining project is expected to generate substantial economic impacts, including 334 direct jobs over 22 years and indirect benefits to local businesses. Approximately 96% of the workforce is sourced locally.

Gender

Economic benefits may be unevenly distributed due to the male-dominated nature of the mining sector.footnote 10 Nationally, women represent a small proportion of the mining and construction workforce, particularly in trades and operational roles.footnote 11 Tacora Resources has made measurable progress, with women comprising 27% of its workforce in 2023. The company’s Gender Equity, Inclusion, and Diversity Plan aims to further support female participation through partnerships, training programs, and access to child and elder care.

Indigenous community

Indigenous populations represent 12.5% of Wabush’s population.footnote 12 The proponent has engaged Indigenous communities through an Impact and Benefits Agreement with the Innu Nation, providing employment, procurement opportunities, and collaboration on environmental monitoring. While the exemption order permits navigation to be extinguished, such impact is expected to be minimal given the presence of the existing mining operations so close to the waterbodies has discouraged navigation use.

The exemption order supports continued mining operations, promoting employment stability and local economic growth. Potential negative impacts on traditional activities are expected to be minor, and targeted mitigation measures and ongoing Indigenous engagement help ensure that benefits are distributed equitably, with efforts to improve gender and workforce diversity.

Implementation, compliance and enforcement, and service standards

The exemption order will come into force upon publication in the Canada Gazette, Part II.

Following publication, the proponent and Indigenous communities consulted will be informed of the decision through written correspondence. Depositing and dewatering is permitted to proceed immediately once the exemption order is in force. If there is evidence of an alleged CNWA contravention, enforcement personnel from TC will determine an appropriate enforcement action.

Depending upon the circumstances and subject to the exercise of enforcement and prosecutorial discretion, the following instruments are available to respond to alleged contraventions under the CNWA:

Contact

Joanne Weiss Reid
Director
Operations and Regulatory Development
Navigation Protection Program
Transport Canada
Place de Ville, Tower C
330 Sparks Street
Ottawa, Ontario
K1A 0N5
Email: NPPHQ-PPNAC@tc.gc.ca