Minor Works Order: SOR/2021-170

Canada Gazette, Part II, Volume 155, Number 15

Registration
SOR/2021-170 June 29, 2021

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 slightly interfere with navigation;

Therefore, the Minister of Transport, pursuant to subsection 28(2) footnote a of the Canadian Navigable Waters Act footnote b, makes the annexed Minor Works Order.

Ottawa, June 28, 2021

Omar Alghabra
Minister of Transport

Minor Works Order

Interpretation

Definitions

1 (1) The following definitions apply in this Order.

Act
means the Canadian Navigable Waters Act. (Loi)
aerial cables
means cables that are in the air and includes the towers and poles from which they are suspended. (câbles aériens)
charted navigable water
means a navigable water for which nautical charts are produced by the Canadian Hydrographic Service or the National Oceanic and Atmospheric Administration of the United States. (eaux navigables cartographiées)
erosion-protection work
means any stones, rocks, concrete, logs or other common building materials or living plants placed to protect the bank of a navigable water from erosion. (ouvrages de protection contre l’érosion)
navigation channel
means a channel represented on a nautical chart produced by the Canadian Hydrographic Service or the National Oceanic and Atmospheric Administration of the United States or a channel for which markers have been placed by a federal, provincial or municipal government or by a port authority, as defined in subsection 2(1) of the Canada Marine Act. (chenal de navigation)
navigation route
means a channel, other than a navigation channel, formed by the connection of the deep sections of a navigable water that, based on local knowledge, is predominantly used by vessels for navigation purposes. (voie de navigation)

Interpretation

(2) In this Order, submarine cables includes concrete blocks, concrete mattresses and any other objects attached to, laid on or placed under submarine cables to hold them in place or to protect them from being damaged.

Measurements — length or width of minor work

2 (1) Unless otherwise indicated, any length or width of a minor work referred to in this Order is measured from the ordinary high water mark at the site where the minor work is situated.

Measurements — width of navigable water

(2) Unless otherwise indicated, any width of a navigable water referred to in this Order is measured from the ordinary high water mark on one side of the navigable water to the ordinary high water mark on the other side of the navigable water at the site where the minor work is situated.

Measurements — depth or height

(3) Unless otherwise indicated, any depth or height referred to in this Order is measured from the ordinary high water level at the site where the minor work is situated.

General

Application

3 (1) Subsections (2) and (3) apply to the following minor works:

Deposit of information

(2) Before beginning the construction, placement, alteration, rebuilding, removal or decommissioning of a minor work, the owner must deposit information in the registry established under section 27.2 of the Act describing the proposed activity and the minor work’s location.

Publication of notice

(3) Before beginning the construction, placement, alteration, rebuilding, removal or decommissioning of a minor work, the owner must publish a notice in accordance with the requirements set out on the Internet site maintained by the Government of Canada entitled Navigation Protection Program External Submission Site under the heading “Create a Notification of a Minor Work”, as amended from time to time, unless the proposed minor work has gone through a federal or provincial review process.

Prior notification of Canadian Coast Guard

4 At least 48 hours before beginning the construction, placement, alteration, rebuilding, removal or decommissioning of a minor work in, on, over, under, through or across a charted navigable water, the owner of the minor work must, in writing, notify a Canadian Coast Guard Marine Communications and Traffic Services Centre of the day on which the activity is expected to begin.

Buoys

5 A buoy referred to in this Order must meet the following criteria:

Requirements

6 During the construction, placement, alteration, rebuilding, removal, decommissioning, repair or maintenance of a minor work, the owner of the minor work must ensure

Application

7 (1) Subsection (2) applies to the following minor works:

Requirements

(2) During the construction, placement, alteration, rebuilding, removal, decommissioning, repair or maintenance of a minor work, the owner of the minor work must ensure that navigators are notified of the work site both upstream and downstream of the work site by one of the following means:

Notification on completion

8 On completion of the construction, placement, alteration, rebuilding, removal or decommissioning of a minor work in, on, over, under, through or across a charted navigable water, the owner of the minor work must, in writing, notify:

Designations

Temporary Works

Designation — temporary works

9 A work that meets the following criteria is designated as a minor work:

Removal

10 The owner of a work that is designated as a minor work under section 9 must ensure that it is removed on completion of the construction, placement, alteration, rebuilding, removal, decommissioning, repair or maintenance of the minor work for which it was installed.

Bed contours of navigable water

11 If the construction, placement, alteration, rebuilding, removal, decommissioning, repair or maintenance of a work that is designated, or intended to be designated, as a minor work under section 9 disturbs the bed contours of a navigable water to the point of interfering or likely to interfere with navigation, the owner of the work must ensure, on completion of the removal of the work, that the bed contours of the navigable water do not and are not likely to interfere with navigation.

Erosion-Protection Works

Designation — erosion-protection works

12 (1) An erosion-protection work that meets the following criteria is designated as a minor work:

Definition of groyne

(2) In this section, groyne means a structure built out from the bank of a navigable water in a direction transverse to the current in order to prevent erosion of the bank.

Docks and Boathouses

Definitions

13 The following definitions apply in section 14.

dock
includes a wharf, a pier and a jetty. (quai)
similar
means used for the same purpose — commercial or recreational — and under the same type of ownership — public or private. (similaire)

Designation — docks and boathouses

14 A dock or boathouse that meets the following criteria is designated as a minor work:

Slipways and Boat-Launching Ramps

Designation — slipways and boat-launching ramps

15 A slipway or boat-launching ramp that meets the following criteria is designated as a minor work:

Aerial Cables

Designation — aerial cables

16 (1) An aerial cable that meets the following criteria is designated as a minor work:

Amendments to the standard

(2) Amendments to one language version of the standard referred to in paragraph (1)(e) are not incorporated by reference until the corresponding amendments are published in the other language version.

Submarine Cables

Designation — submarine cables

17 A submarine cable that meets the following criteria is designated as a minor work:

Re-lay, rebury or remove cables

18 If a submarine cable that was designated as a minor work under section 17 is no longer lying on or buried under the bed of the navigable water, the owner of the submarine cable must, as soon as feasible, re-lay the cable on the bed of the navigable water, rebury the cable under the bed of the navigable water or remove the cable.

Buried Pipelines

Designation — buried pipelines

19 A pipeline that meets the following criteria is designated as a minor work:

Requirement — water with width of more than 50 m

20 During the construction or placement of a pipeline that is intended to be designated as a minor work under section 19 in navigable water the width of which is more than 50 m at the location of the burial, the owner of the pipeline must ensure that the pipeline is buried using the horizontal directional drilling method.

Horizontal directional drilling method with guiding cables

21 If the owner of a pipeline that is intended to be designated as a minor work under section 19 buries the pipeline using the horizontal directional drilling method with guiding cables placed in the navigable water, the owner must ensure that

Bed contours of navigable water

22 If the construction, placement, alteration, rebuilding, removal, decommissioning, repair or maintenance of a pipeline that is designated, or intended to be designated, as a minor work under section 19 disturbs the bed contours of a navigable water to the point of interfering or likely to interfere with navigation, the owner of the pipeline must ensure, on completion of the activity, that the bed contours of the navigable water do not and are not likely to interfere with navigation.

Rebury or remove pipelines

23 If a pipeline that was designated as a minor work under section 19 is no longer buried under the bed of the navigable water, the owner of the pipeline must, as soon as feasible, rebury the pipeline under the bed of the navigable water or remove the pipeline.

Pipelines and Cables Used for Power or Telecommunication Purposes Attached to an Existing Work

Designation — pipelines and certain cables

24 A pipeline or a cable used exclusively for power or telecommunication purposes that meets the following criteria is designated as a minor work:

Works Within an Area Bounded by a Boom

Designation — certain works

25 A work that meets the following criteria is designated as a minor work:

Outfalls and Water Intakes

Designation — outfalls and water intakes

26 An outfall or a water intake that meets the following criteria is designated as a minor work:

Reposition or remove

27 If an outfall or water intake that was designated as a minor work under section 26 no longer meets the criteria set out in paragraph 26(a), the owner of the outfall or water intake must, as soon as feasible, reposition the outfall or water intake to meet this criteria or remove the outfall or water intake.

Dredging

Designation — dredging

28 Dredging to maintain the charted width or depth of a charted navigable water or the width or depth of any other navigable water is designated as a minor work.

Requirements

29 (1) The owner of dredging designated as a minor work under section 28 must ensure that

Exception — turbidity curtain

(2) Subparagraphs (1)(a)(ii) and (b)(ii) do not apply if the owner of the dredging

Bed contours of navigable water

30 If dredging designated as a minor work under section 28 disturbs the bed contours of a navigable water to the point of interfering, or likely to interfere, with navigation, the owner of the dredging must ensure, on completion of the activity, that the bed contours of the navigable water do not and are not likely to interfere with navigation.

Mooring Systems

Designation — mooring systems

31 (1) A mooring system that meets the following criteria is designated as a minor work:

Table
Item

Column 1

Depth of Navigable
Water

Column 2

Maximum Diameter of the Swing Area
1 6 m or less 50 m
2 More than 6 m but
not more than 10 m		 70 m
3 More than 10 m but
not more than 14 m		 80 m
4 More than 14 m 100 m

Definition of swing area

(2) In this section, swing area means the area created by the swinging of a vessel moored to a mooring system.

Vessels of more than 12 m

32 The owner of a mooring system that is designated as a minor work under subsection 31(1) must not moor, or permit others to moor, to the mooring system a vessel that is more than 12 m in length, as measured between the fore and aft extremities of the vessel.

Removal of mooring system

33 The owner of a mooring system that is designated as a minor work under subsection 31(1) must remove the mooring system as soon as feasible if

Watercourse Crossings

Designation — watercourse crossings

34 A watercourse crossing, including its abutments, footings and armouring, that meets the following criteria is designated as a minor work:

Infilling

35 During the construction, placement, alteration, rebuilding, removal, decommissioning, repair or maintenance of a watercourse crossing that is designated, or intended to be designated, as a minor work under section 34, the owner of the watercourse crossing must ensure that there is no infilling of navigable water.

Swim Areas

Definitions

36 The following definitions apply in this section and in sections 37 and 38.

Indigenous governing body
means a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982. (corps dirigeant autochtone)
local authority
means a government of a municipality, township, county or regional district, an Indigenous governing body, any other government constituted under the laws of a province or territory or a department of a provincial or territorial government or of the federal government. (administration locale)
swim area
means an area for swimming that has been demarcated with ropes by, or on behalf of, a local authority. (zone de baignade)

Designation — swim areas

37 A swim area that meets the following criteria is designated as a minor work:

Designation — works used by swimmers

38 A work that is used by swimmers in a swim area that is designated as a minor work under section 37 is designated as a minor work.

Scientific Equipment

Designation — scientific equipment

39 (1) Scientific equipment that meets the following criteria is designated as a minor work:

Definition of scientific equipment

(2) In this section, scientific equipment means monitoring and measurement devices, and any associated buoys, platforms or other similar structures, installed in, on, under, through or across a navigable water.

Coming into Force

Registration

40 This Order comes into force on the day on which it is registered.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

Pursuant to subsection 28(2) of the Canadian Navigable Waters Act (CNWA), the Minor Works Order

Objective

The Minor Works Order supports the Government of Canada’s commitment to restore lost protections and incorporate modern safeguards for the public right to navigation by designating minor works that are likely to slightly interfere with navigation. Under the CNWA, owners of minor works may proceed with a proposed minor work on any navigable water without applying for an approval from Transport Canada (TC).

The Minor Works Order serves to minimize administrative burden and protect navigation by requiring minor works to meet the criteria for the applicable class of works, as well as specific requirements for construction.

Background

The Minor Works and Waters Order was originally made in 2009 under the Navigable Waters Protection Act (NWPA). The Minor Works and Waters Order was amended in 2014 with the coming into force of the Navigation Protection Act (NPA).

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 NPA with a view to restoring lost protections and incorporating modern safeguards.

During the review of the previous NPA, TC heard a range of views on the Minor Works and Waters Order. Some Canadians viewed the Minor Works and Waters Order as a modern risk-based approach, and others suggested that authorizations should be required for all works.

The CNWA came into force on August 28, 2019, and maintained the Minister of Transport’s authority to designate works that are likely to slightly interfere with navigation as being minor works. The 2014 version of the Minor Works and Waters Order remained in force under the CNWA. Given that minor works are a key component of the CNWA legislative framework, TC committed to reviewing and updating the Minor Works and Waters Order and to consider the addition of new types of minor works.

Implications

The Minor Works Order designates the types of “minor” works that the Minister of Transport considers to be likely to slightly interfere with navigation. An owner of a minor work may construct, place, alter, rebuild, remove or decommission the minor work in, on, over, under, through or across any navigable water in accordance with the requirements found in the Minor Works Order. The Minor Works Order is akin to a “building code” for certain works built on navigable waters.

The 2014 version of the Minor Works and Waters Order established eleven types of works as minor works. To modernize the previous Minor Works and Waters Order, TC developed amendments for these eleven existing types of works.

Some of these amendments create flexibility for owners, by setting options for how they can mitigate the interference that their work would pose to navigation. In addition, the amendments clarify existing requirements, and consolidate requirements that are common to all of the existing types of minor works into a general conditions section.

The amendments also introduce three new types of minor works and related criteria to ensure they only slightly interfere with navigation:

Ultimately, the modernization of the Minor Works Order will safeguard navigation by maintaining and establishing requirements that protect navigation; and reduce administrative burden by allowing TC’s CNWA approval processes to focus on works with greater levels of interference to navigation, and allowing owners more flexibility in project design.

If a proposed work on a navigable water would not meet the requirements of the Minor Works Order, then the owner would be required to apply for an approval, or follow the process for works on navigable waters not listed on the CNWA’s schedule of navigable waters.

The Minor Works Order also introduces a new deposit and notice requirement for seven types of minor works:

Before proceeding with one of the above seven types of works, owners would need to deposit information with TC on its public registry, and publish a notice with basic information about the project and its location.

The requirement for owners to publish a notification will help ensure that communities are aware of proposed minor works, including those that could impact Indigenous peoples’ ability to exercise rights by limiting access to a waterway or disturbing the bed of the navigable water. The requirement for owners to deposit information with TC support the consideration and assessment of cumulative impacts to navigation, including in the review of works (other than minor works) that are subject to approval by TC.

Consultation

Consultations occurred in two phases: the first phase of consultations occurred between May to July 2019 and the second phase occurred between August to November 2020. In each phase, TC published discussion papers online to solicit views and feedback on the types of works to include in the Minor Works Order, suggested changes to the existing categories of minor works, and proposed terms and conditions for the construction of these minor works.

TC held regular discussions with provinces and territories, organized open calls with Indigenous groups, and engaged with representatives from industry associations. TC received more than 100 written submissions from Indigenous groups, municipalities, provinces and territories, non-governmental organizations, and industry associations across Canada.

Overall, comments received were generally supportive of the Minor Works Order. Indigenous communities, however, articulated the need to be aware of proposed minor works that could impact Indigenous peoples’ rights. TC subsequently modified the proposed changes to the Minor Works Order in response to these recommendations.

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

Contact

Jacob McBane
Manager
Program Design and Regulatory Development
Navigation Protection Program
Transport Canada
Email: NPPHQ-PPNAC@tc.gc.ca