What we heard: Public consultation on proposed changes to the Minor Works Order under the Canadian Navigable Waters Act

In the fall of 2018, Transport Canada began reviewing and updating the Minor Works Order (the order) to:

  • bring the order in line with the Canadian Navigable Waters Act
  • add new categories of minor works, if needed, and
  • make it easier to understand

This report summarizes the feedback we received through two comment periods from May to July 2019, and August to November 2020. This report also explains how this feedback helped us develop the latest Minor Works Order.

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A work is any temporary or permanent structure or thing that has been made by people. This includes dumping, filling, dredging or removing materials from the bed of a navigable water.

The Canadian Navigable Waters Act regulates how works are built, placed, altered, rebuilt, removed or decommissioned in, on, over, under, through or across any navigable water in Canada.

The act gives the Minister of Transport the power to designate any work that will, or is likely to, slightly interfere with navigation as a “minor work” and identify them with a Minor Works Order.

Anyone who owns a minor work can build, place, alter, rebuild, remove or decommission the minor work in, on, over, under, through or across any navigable water, according to the requirements in the Minor Works Order.

Our consultation approach

We consulted Canadians twice between 2019 and 2020. In each consultation, we posted discussion papers on our website and emailed them to:

  • Indigenous nations, communities and organizations
  • industry groups
  • non-governmental organizations
  • other federal government departments, and
  • provinces, territories and municipalities

We also held teleconferences with Indigenous peoples, industry stakeholders and other government departments.

Our first consultation lasted 41 days from May to July 2019. During this consultation we asked for input on:

  • what types of minor works we could add to the order
  • what requirements we should have for any new types of minor works, and
  • whether the order’s existing requirements should be changed

The second comment period lasted 62 days from August to November 2020. We also gave several communities more time to gather views, due to the COVID-19 pandemic. During this consultation we asked for feedback on:

  • how we wanted to restructure the order
  • changes we want to make to existing requirements, and
  • three new types of works and their requirements

Read our first discussion paper

Read our second discussion paper (PDF, 2.75 MB)

Who we heard from

In total, we received 101 submissions of written feedback.

From the 101 written submissions received, 50 were from Indigenous communities, 21 from the industry, 5 from provinces and territories, 7 from federal government departments, 14 from municipalities and 4 from non-governmental organizations. From the 67 open call participants, 35 were from Indigenous communities, 11 from the industry, 14 from provinces and territories, 3 from federal government departments, 4 from municipalities and 0 from non-governmental organizations.

What we heard

Overall, comments generally supported the Minor Works Order. However, Indigenous peoples had some concerns and wanted to know about any proposed minor works that could impact their rights.

Feedback grouped by theme

We’ve grouped comments by theme in the following sections. Themes are listed in no particular order.

Help Canadians understand the order

In our first discussion paper, we suggested simplifying the order to make it easier to understand.

Overall, this idea was supported; particularly, participants supported:

  • defining terms or improving existing definitions like “charted navigable waters”, “navigation channel” and “ordinary high-water mark”
  • adding illustrations
  • creating more guidance documents

Indigenous peoples also wanted it clarified that a minor work must also comply with other relevant federal, provincial and local legislation. Industry stakeholders felt that a clear and easy to use order could be used to encourage people to design projects in a way that will minimize any impacts on navigation.

Our response to feedback on “help Canadians understand the order”

Transport Canada has an external submission site where proponents (people who want to start a project) can submit project proposals and get information about requirements. The site also includes a Project Review Tool that’s being updated to help owners determine whether their project is a “minor work.”

The tool will also include information to:

  • define the term “ordinary high-water mark”
  • help owners figure out whether their proposed work will be in a:
    • charted navigable water, or
    • Canadian heritage river
  • add illustrations to visually represent the requirements for each type of minor work

Share information on proposed minor works

A second key theme that arose was the need for more awareness of proposed minor works for navigators and nearby communities. Participants had differing views on how we could do this, and whether we should add new public notification requirements to the order.

Generally, comments supported the existing requirement to notify the Canadian Coast Guard and the Canadian Hydrographic Service for some types of minor works. We suggested applying these requirements to any proposed minor work on charted navigable waters. Participants had no concerns about this idea.

That being said, there were differing views on whether the owner of a proposed minor work should be required to:

  • upload project information to the Government of Canada’s Common Project Search registry, and
  • notify nearby communities, including Indigenous communities, about the proposed project

Here’s what we heard from Indigenous peoples:

  • a minor work, either alone or combined with others, could impact the rights of Indigenous peoples
  • support for adding a deposit and notification requirement for seven types of minor works that could negatively impact the rights of Indigenous peoples
  • before construction begins, any proposed minor work that could negatively impact the rights of Indigenous peoples should be reviewed and consulted on

This group also recommended that Indigenous nations and communities be automatically notified by Transport Canada when a project is proposed in, or near, their community. This would allow the community to share their concerns with the project owner, before work begins.

Here’s what we heard from industry, provinces, territories and municipalities:

  • mixed support on adding deposit and notification requirements for seven types of minor works
  • concerns that public notice requirement would increase workload and lead to communities raising issues that aren’t related to navigation
  • questions on how Transport Canada would notify communities about a proposed project, and

safety and security related concerns about publishing the location of some minor works, like buried pipelines or scientific equipment

This group also recommended that:

  • deposits and notifications should be made directly to Transport Canada and
  • any proposed minor work that has been reviewed by the federal or provincial government should not be required to publish a new notice

Our response to feedback on “share information on proposed minor works”

To create the new deposit and public notice requirements, Transport Canada tried to balance the needs of navigators, Indigenous peoples, and nearby communities to be informed about some types of minor works, as well as the need for the project owner to complete their project in a timely manner.

Anyone who owns one of these minor works will be required to deposit information and publish a notice before their project begins:

  • erosion-protection
  • aerial cables
  • submarine cables
  • buried pipelines
  • outfalls and water intakes
  • dredging
  • watercourse crossings

Deposit requirements

The owner of a proposed minor work will need to deposit this information into Transport Canada’s External Submission Site:

  • a brief description of the proposed work
  • the building methods that will be used
  • the work’s location
  • the project’s expected start and end date

Notice requirements

The owner of a proposed work will need to publish a notice to inform nearby communities about the project. Soon communities will be able to sign-up to be automatically notified about a proposed minor work in their area.

Exemption to notice requirement

If a proposed minor work has already been reviewed by the federal or provincial government, it will not be required to publish a new notice. However, information about the project will still need to be deposited in the Common Project Search.

Although some participants felt that a proposed minor work should be consulted on or approved by Transport Canada, the Canadian Navigable Waters Act doesn’t require owners of minor works to have their projects reviewed or approved.

Monitoring requirements

Requiring project owners to upload information about their projects to Transport Canada’s External Submission Site will help us collect more information about minor works on navigable waters. This information will help us determine if minor works comply with the order, and monitor the works’ impacts to navigation on navigable waters.

Make project design more flexible and protect navigation

The third key theme that emerged was the importance of protecting the public’s right to navigate. Although their views differed, most participants supported the idea of protecting navigation while also allowing the designs of projects to be flexible.

There was support for moving to outcome-based requirements (where relevant), rather than keeping some of the prescriptive requirements.

There was also support for updating the buried pipeline designation to include other less intrusive pipeline placement methods, like horizontal directional drilling, rather than only allowing trenched methods.

Here’s what we heard from Indigenous peoples:

  • concerns about monitoring compliance
  • concerns about possible impacts to some kinds of minor works, namely:
    • erosion-protection;
    • buried pipelines;
    • outfalls and water intakes
    • dredging areas
    • watercourse crossings
  • support for taking a project’s size into consideration when designating a work as “minor”

This group also recommended that we replace the 50-metre threshold for buried pipelines with a threshold that considers a cumulative regional perspective.

Here’s what we heard from industry:

  • there are too many strict requirements for works that interfere with navigation just a bit
  • the order is so strict that only a few activities or works qualify as “minor”
  • requirements should focus on making sure works only impact navigation slightly
  • the 50-metre threshold should be increased for buried pipelines placed by horizontal directional drilling, since they cover long distances with very little equipment

Our response to “make project design more flexible and protect navigation”

Adding flexibility

These examples illustrate how we’ve changed the order to be more flexible, so owners can choose the best method for their project:

  • We’ve removed specific distances for signs or lights to warn navigators of a work ahead. Instead, there are now three options owners can choose from.
  • We’ve added specific requirements for buried pipelines placed by a horizontal drilling method, rather than maintaining the previously proposed “one-size-fits” all approach.

Other types of works that could be designated

The last key theme that arose was other types of works that could be designated in the order. In our first discussion paper, we listed other types of works that could be designated:

  • clear-span bridges
  • culverts
  • geotechnical testing
  • geothermal installations
  • scientific equipment
  • swim areas, and
  • water sports related works

There was general support for including clear-span bridges, swim areas and scientific equipment. We also heard that requirements shouldn’t lead to reducing the vertical clearance that vessels need for clear-span bridges.

We heard that a proposed limit on a swim area’s size should be based on the size of the navigable water where the swim area is located.

Here’s what we heard from Indigenous peoples:

  • they felt that geotechnical testing should not be considered a minor work
  • concerns about possible negative impacts from:
    • geothermal installations and their placement methods
    • works used for some water sports
  • support for adding culverts that don’t affect navigation
  • concerns that most culvert designs do interfere with navigation

Here’s what we heard from industry and other levels of government:

  • support to include:
    • geotechnical testing, and
    • culverts
  • suggestions to include:
    • agricultural man-made structures
    • fish habitat compensation works
    • booms, and
    • temporary works used to repair and maintain other works

Our response to “other types of work that could be designated”

For various reasons, these types of works will not be included in the order:

  • geotechnical testing
  • geothermal installations
  • water sport related works
  • agricultural man-made structures
  • fish habitat compensation works
  • booms
  • temporary works used to repair or maintain other works

These types of works will be included in the order:

  • scientific equipment placed in navigable waters:
    • will include monitoring and measuring devices and
    • won’t include geotechnical testing equipment
  • swim areas will be designated as minor works when placed by, or for, a local authority
  • watercourse crossings used to carry animals, vehicles, or people on foot over a body of water, and don’t disturb or change a navigable waters’ width or bed will include:
    • single span bridges
    • open bottom culverts or
    • other similar structures

Next steps

We have recorded the comments we received through this consultation and considered them as we updated the Minor Works Order.

This was the last round of consultations before the updated regulations are published in the Canada Gazette, Part II. Transport Canada will notify stakeholders and Indigenous peoples when the revised Minor Works Order appears in the Canada Gazette.

Based on our current timeline, the updated order should come into effect by early summer 2021.

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