Major Works Order: SOR/2019-320

Canada Gazette, Part II, Volume 153, Number 18

Registration

SOR/2019-320 August 28, 2019

CANADIAN NAVIGABLE WATERS ACT

Whereas the Minister of Transport is of the opinion that the works set out in the annexed Order are likely to substantially interfere with navigation;

Therefore, the Minister of Transport, pursuant to paragraph 28(2)(b) ^{footnote a} of the Canadian Navigable Waters Act ^{footnote b}, makes the annexed Major Works Order.

Ottawa, August 9, 2019

Marc Garneau
Minister of Transport

Major Works Order

Water Control Structures

Works — water control structures

1 The following water control structures are designated as major works:

• (a) dams that
  • (i) are capable of impounding at least 30 000 m³of water, and
  • (ii) are at least 2.5 m high, measured from the bed of the navigable water; and
• (b) structures for the diversion of water if they
  • (i) are placed across a navigable water,
  • (ii) divert water from a navigable water into another navigable water, and
  • (iii) change the water level or water flow of at least one of those navigable waters.

Ferry Cables

Works — ferry cables

2 (1) Ferry cables are designated as major works.

Definition of ferry cable

(2) In this section, a ferry cable includes any cable, rod, chain or other device put across, over, under or in any navigable water for working a ferry.

Bridges

Works — bridges

3 (1) The following bridges are designated as major works:

• (a) movable span bridges;
• (b) floating span bridges; and
• (c) fixed span bridges with one or more piers below the ordinary high water mark.

Definition of floating span bridge

(2) In this section, a floating span bridge means a bridge that is built on floating anchored foundations.

Temporary works

4 Temporary works that are installed for a period of at least 30 consecutive days for the construction, placement, alteration, rebuilding, removal, decommissioning, repair or maintenance of a bridge are designated as major works, unless they are installed during a period when navigation is not possible.

Causeways

Works — causeways

5 Causeways that are placed across a navigable water are designated as major works.

Aquaculture Facilities

Works — aquaculture facilities

6 Aquaculture facilities are designated as major works.

Coming into Force

S.C. 2019, c. 28

7 This Order comes into force on the day on which subsection 61(4) of An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts comes into force, but if it is registered after that day, it comes into force on the day on which it is registered.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

Pursuant to paragraph 28(2)(b) of the Canadian Navigable Waters Act (CNWA), this Ministerial Order establishes six major works that are likely to substantially interfere with navigation: water control structures, ferry cables, bridges, temporary works related to bridges, causeways and aquaculture sites.

Objective

The Ministerial Order supports the Government of Canada’s commitment to restore lost protections for the public right of navigation by designating major works that are likely to substantially interfere with navigation on any navigable water.

Background

In the 2015 Speech from the Throne, the Government of Canada made a commitment to review and modernize environmental and regulatory processes. As part of this broader commitment, the Government reviewed the Navigation Protection Act (NPA) with a view to restoring lost protections and incorporating modern safeguards.

During the review of the NPA, Canadians, particularly Indigenous peoples, expressed that the scope of the Act could be broadened and that all navigable waters should be protected from works with a high potential to impact navigation. Transport Canada responded by introducing in the CNWA a new category of works called major works. The CNWA provides that an owner proposing to construct, place, alter, rebuild, remove or decommission a major work that may interfere with navigation in any navigable water must apply to the Minister of Transport for an approval. Under the CNWA, the Minister of Transport has the authority to make an order designating any works that are likely to substantially interfere with navigation as major works.

The CNWA received royal assent on June 21, 2019, and comes into force on August 28, 2019.

Implications

Under the NPA, owners of works (except minor works) on navigable waters listed in the Schedule of the Act were already required to apply to Transport Canada. This would continue under the CNWA, as owners of works (except minor works) that may interfere with navigation on navigable waters listed in the Schedule must apply for an approval from Transport Canada.

The Major Works Order serves to extend these protections to all navigable waters, including those not listed in the Schedule. Owners planning to construct, place, alter, rebuild, remove or decommission a major work that may interfere with navigation on any navigable water must apply for an approval to the Minister of Transport before building begins. Where the alteration, rebuild, removal, or decommissioning of existing major works would not interfere with navigation, the owner would not be required to apply for an approval, rather they would deposit information in a place specified by the Minister of Transport (the public registry), and notify the public of the proposed work.

Consultation

Since starting its review of the Navigation Protection Act in 2016, the Government of Canada has actively engaged with industry stakeholders, non-governmental organizations, Indigenous groups, and other levels of government.

In November 2018, Transport Canada published a discussion paper online to consult with stakeholders on the proposed categories of major works. Transport Canada received more than 80 written submissions from Indigenous groups, municipalities, provinces and territories, non-governmental organizations, and industry associations across Canada.

In addition to this process, Transport Canada consulted stakeholders on the Major Works Order in the context of broader discussions on the CNWA. This included regular discussions with provinces and territories, engagement sessions and open calls with Indigenous groups, and meetings with representatives from industry associations.

The following themes emerged over the course of consultations, which informed the development of the Order:

• the categories should be clear for owners of works and the public;
• the categories should be broader than only capturing works that prevent navigation;
• importance that Indigenous peoples be provided with notice of all works that affect their rights, not only those works designated as major;
• Transport Canada review processes should focus on works that may interfere with navigation; and
• activities with respect to existing major works that do not interfere should not require an application.

Departmental contact

Jacob McBane
Manager
Program Design & Strategic Partnerships
Transport Canada
Email: NPPHQ-PPNAC@tc.gc.ca