24 LAND AND WATER REGULATION
24.1 GENERAL
24.1.1
The following principles apply to this chapter:
an integrated system of land and water management should apply to the Mackenzie Valley; the regulation of land and water in the settlement area and in adjacent areas should be co-ordinated; and government shall retain the ultimate jurisdiction for the regulation of land and water.
24.1.2
The process of establishing new national parks and commemorating national historic parks and sites in the Mackenzie Valley after the date of settlement legislation shall be subject to the land use planning and environmental impact assessment and review provisions of this chapter. The land use planning and the regulation of land and water use provisions of this chapter shall not apply to national parks and national historic parks and sites administered by the Canadian Parks Service. The environmental impact assessment and review provisions of this chapter shall apply to development proposals in national parks, national park reserves and national historic parks and sites. Legislation shall provide for co-ordination of the activities of the boards established pursuant to this chapter with the management of national parks and with the activities of bodies to be established pursuant to chapter 15, and with the management of national historic parks and sites and with the activities of bodies to be established pursuant to chapter 16.
24.1.3
Each of the boards referred to in this chapter, other than the Interim Planning Board, shall be established, within two years of the date of settlement legislation, as an institution of public government by legislation which shall implement the provisions of this chapter and may provide for any other matter consistent with this chapter. The costs of the boards referred to in this chapter shall be the responsibility of government. Each board shall prepare an annual budget, subject to review and approval by government. Legislation shall provide for the co-ordination of the activities of the boards referred to in this chapter, the Renewable Resources Board and the Surface Rights Board. Legislation may provide for the reallocation of functions among any of the boards referred to in this chapter, provided that:
environmental assessment and review shall remain with the Review Board as set out in 24.3; and the Gwich’in Tribal Council shall be consulted during the drafting of any such legislation. Any board established pursuant to this chapter may establish its own rules of procedure in accordance with legislation. Any board established pursuant to this chapter shall have, subject to its approved budget, such staff, professional and technical advisors as are necessary for the proper conduct of its affairs and the boards may determine, where appropriate, to share such staff or advisors among the boards. All information in the possession of a government department or agency relevant to a matter before any of the boards established pursuant to this chapter shall be provided, upon request, to such board. A vacancy in the membership of a board does not impair the right of the remainder to act.
24.1.4
The legislation implementing the provisions of this chapter shall provide for a method of monitoring the cumulative impact of land and water uses on the environment in the Mackenzie Valley, and for periodic, independent, environmental audits which shall be made public. If any board or similar body is established by such legislation to carry out the monitoring and audit functions referred to in (a) in the settlement area, the Gwich’in shall be entitled to a meaningful role in such board or agency to be set out in legislation, after consultation with the Gwich’in Tribal Council. If the monitoring or environmental audit functions referred to in (a) are carried out in the settlement area by a department of government, the department shall do so in consultation with the Gwich’in Tribal Council.
24.1.5
Where a board described in this chapter has the authority to enter into contracts or similar arrangements, the Gwich’in Tribal Council shall not be disqualified from entering into such contracts or arrangements solely by virtue of the fact that there are Gwich’in nominees on the board.
24.1.6
Where any board described in this chapter is required to make a decision which may affect an area which is being used by aboriginal persons who are party to an adjacent comprehensive land claim agreement in the Northwest Territories, the aboriginal party to the adjacent land claims agreement shall have the right to have representation on the board. Each board shall determine how to implement this provision provided that the proportional representation of aboriginal groups and government, not including the chairperson, be maintained.
24.2 LAND USE PLANNING
24.2.1
A Planning Board shall be established and shall have jurisdiction, in accordance with the provisions of this agreement, for developing, reviewing and proposing approvals, exceptions and amendments in respect of a land use plan for the settlement area. The Planning Board shall have regard to any land use plan which is in effect for the settlement area at the date of establishment of the Planning Board.
24.2.2
The Planning Board shall have equal membership from nominees of the Gwich’in Tribal Council and of government, not including the chairperson.
24.2.3 The head office of the Planning Board shall be in the settlement area.
24.2.4
The following principles shall guide land use planning in the settlement area:
the purpose of land use planning is to protect and promote the existing and future wellbeing of the residents and communities of the settlement area having regard to the interests of all Canadians; special attention shall be devoted to:
protecting and promoting the existing and future social, cultural and economic well-being of the Gwich’in; lands used by the Gwich’in for harvesting and other uses of resources; and the rights of the Gwich’in under this agreement; land use planning shall directly involve communities and designated Gwich’in organizations; and the plan developed through the planning process shall provide for the conservation, development and utilization of land, resources and waters.
24.2.5
Water resources planning within the Mackenzie Valley is an integral part of land use planning.
24.2.6
Land use planning within local government boundaries shall be the responsibility of the local or territorial government. The local or territorial government shall consult with the relevant Gwich’in community in the development of a community plan.
24.2.7
The Gwich’in may prepare a land use plan or plans for settlement lands in the settlement area which shall be considered by the Planning Board.
24.2.8
Any person may apply to the Planning Board for an exception or amendment to the plan to allow a proposed use.
24.2.9
Decisions of the Planning Board in respect of the land use plan shall be subject to approval by government in a manner to be provided in legislation.
24.2.10
Upon approval of a land use plan, those authorities with jurisdiction to grant licences, permits, leases or interests relating to the use of land and water in the settlement area shall conduct their activities and operations in accordance with the plan.
24.2.11
The Planning Board may liaise and co-ordinate its plan, or co-operate in land use planning, with the appropriate land use planning bodies for the Inuvialuit Settlement Region, the Sahtu Settlement Region and the primary use area described in appendix C. Any co-operative land use plans are subject to the approval of the relevant federal and territorial ministers as may be provided in legislation.
24.2.12
Between the date of settlement legislation and the date that the legislation establishing the Planning Board comes into effect, land use planning in the settlement area shall be conducted by an Interim Planning Board on the basis of the plan developed for the settlement area by the Mackenzie Delta-Beaufort Sea Regional Land Use Planning Commission. The Interim Planning Board shall have equal membership from nominees of the Gwich’in Tribal Council and of government, not including the chairperson, who shall be selected by the other members of the Interim Planning Board. Planning by the Interim Planning Board shall be in accordance with the July 28, 1983 “Basis of Agreement for Land Use Planning in the Northwest Territories”, together with amending agreements thereto.
24.3 ENVIRONMENTAL IMPACT ASSESSMENT AND REVIEW
24.3.1
All development proposals in the Mackenzie Valley, including development proposals in relation to Gwich’in lands, shall be subject to the process of environmental impact assessment and review as set out in 24.3.
24.3.2
An Environmental Impact Review Board (“the Review Board”) shall be established as the main instrument for the conduct of environmental impact assessment and review in the Mackenzie Valley. The Review Board shall have equal membership from nominees of aboriginal groups and of government, not including the chairperson. No less than one member of the Board shall be a nominee of the Gwich’in Tribal Council.
24.3.3
Legislation may provide
for development proposals or classes thereof which are exempt from the process of environmental impact assessment and for the amendment of any such exemptions; and for a preliminary screening of development proposals by any government department or board, in order to determine whether any assessment is required.
Legislation shall provide that a development proposal which would otherwise be exempt from assessment may be assessed if, in the opinion of the Review Board, it is considered to be of special environmental concern by reason of its cumulative effects or otherwise.
24.3.4
A development proposal in the settlement area or which may impact upon the settlement area may be referred for assessment to the Review Board by the Gwich’in Tribal Council or any governmental authority, and by the Review Board on its own motion.
24.3.5
Subject to 24.3.3(a), a development proposal shall be assessed by the Review Board in order to determine whether the proposed development will likely have a significant adverse impact on the environment or will likely be a cause of significant public concern. In making its determination the Review Board may consider terms and conditions to the proposed development which would prevent significant adverse impact on the environment and may recommend the imposition of such terms and conditions to the Minister. Such terms and conditions shall be subject to review pursuant to 24.3.14. Where the Review Board determines that the proposed development will likely have a significant adverse impact on the environment or will likely be a cause of significant public concern, the Review Board shall determine that the proposed development be subject to an environmental impact review. No licence or approval that would have the effect of permitting a development proposal to proceed shall be issued in respect of the proposal until the assessment and review process as set out in 24.3 has been completed.
24.3.6
Notwithstanding a determination by the Review Board that a review is not required, the Minister may direct that an environmental impact review be conducted.
24.3.7
Where the Review Board determines that a development proposal should be subject to an environmental impact review, or where the Minister issues a direction under 24.3.6, the review shall be conducted, subject to 24.3.8, by a panel of the Review Board. The Review Board panel may include persons appointed by the Review Board because of their special expertise. When the Review Board conducts a review, the Gwich’in Tribal Council shall be entitled to nominate members of the Review Board panel, as follows:
50 percent of the members, not including the chairperson, where the Review Board has determined that the likely significant adverse impact or likely cause of significant public concern is wholly or predominantly within the settlement area; or in all other cases, where the Review Board has determined that the impact of a development proposal is partially within the settlement area, one member.
24.3.8
Where a public review of a development proposal wholly within the Mackenzie Valley is to be conducted pursuant to the Environmental Assessment and Review Process Guidelines Order, or successor legislation, the Federal Environmental Assessment Review Office (FEARO) and the Review Board shall consult and shall establish a joint review panel in lieu of separate review panels. The panel shall produce a report and recommendations which shall be submitted to the Ministers concerned.
24.3.9
Where a panel established by the Minister of the Environment reviews a development proposal which overlaps the Mackenzie Valley and an adjacent area subject to a comprehensive land claim agreement, nominees put forward by the relevant aboriginal groups, including the Gwich’in, shall be no less than one quarter of the members of the panel, not including the chairperson.
24.3.10
The members of the Review Board or the joint review panel shall be free of any conflict of interest relative to the development proposal; however, no member shall be disqualified solely on the ground of being a participant.
24.3.11
Legislation shall provide the Review Board with the power to subpoena witnesses and documents in carrying out its responsibilities.
24.3.12
An environmental impact review shall have regard to:
the protection of the existing and future economic, social and cultural well-being of the residents and communities in the Mackenzie Valley; the protection of the environment from significant adverse impact from the proposed development; and in cases where the proposed development will likely result in a significant adverse impact on the environment, the need for mitigative or remedial measures.
24.3.13
An environmental impact review shall include:
the submission by the proponent of an impact statement in accordance with any guidelines established by the Review Board or the panel; such analysis by the Review Board or the panel as is considered appropriate; public consultation or hearings in affected communities; and a report resulting from the review to the Minister with a recommendation that a development proposal be approved, with or without conditions, or rejected.
24.3.14
The Minister shall consider the report and recommendation of the Review Board under 24.3.5(a) or 24.3.13(d) or of the joint review panel under 24.3.8. In the case of the Review Board, the Minister may accept the recommendation, may refer the recommendation back for further consideration or,
after consulting with the Review Board, accept with modifications or reject the recommendation. In the case of a joint review panel, the Minister may accept the recommendation, accept it with modifications or reject the recommendation. The Minister may consider information not before the Review Board or the panel, and matters of public interest not considered by the Review Board or the panel. Any new facts bearing on the environmental impact of the development proposal shall
be identified by the Minister in consultation with the Review Board.
24.3.15
Written reasons, which shall be public, shall be given for all decisions and recommendations under 24.3.
24.3.16
Except in the case of an agency described in 24.3.17, any decision of the Minister pursuant to 24.3.14 shall be implemented by the Land and Water Board and by each department and agency of government responsible for issuing a licence, permit or other authorization in respect of the development proposal to the extent of the legislative authority of each department and agency.
24.3.17
Where the report described in 24.3.13(d) or the recommendations in 24.3.5(a) and (b) concern a development proposal in respect of which an independent regulatory agency may issue a permit, licence, certificate or other approval, the report or the recommendations shall be forwarded to that agency as well as to the Minister. The agency shall deal with the report and recommendations in the same manner as the Minister under 24.3.14. The provisions of 24.3.15 and 24.3.18 shall apply to the agency with such modifications as the circumstances require. The agency shall implement any recommendations it accepts, to the extent of its legislative authority. In(a),
“independent regulatory agency” means a statutory body which, in the exercise of regulatory or licensing powers, is not subject to specific control or direction by government notwithstanding that it may be subject to general direction whether by guidelines, regulations or directives, or that its decisions may be subject to approval, variance or recision by government.
24.3.18
All parts of this process shall be carried out in a timely manner.
24.3.19
After the date of settlement legislation and before the enactment of legislation pursuant to this chapter, where there is a public review, pursuant to the Environmental Assessment and Review Process Guidelines Order, of a development proposal which is in the settlement area or which may have an effect on the settlement area, the Minister of the Environment shall appoint one member to the review panel from a list of persons nominated by the Gwich’in Tribal Council. The Federal Environmental Assessment Review Office shall consult the Gwich’in Tribal Council throughout the assessment and review stages of a development proposal in (a).
24.4 REGULATION OF LAND AND WATER USE
Land and Water Board (Settlement Area)
24.4.1
A single Land and Water Board shall be established to regulate land and water use throughout the settlement area, including Gwich’in lands.
24.4.2
The objective of the Land and Water Board is to provide for conservation, development and utilization of the land and water resources of the settlement area in a manner that will provide the optimum benefit therefrom for present and future residents of the settlement area and the Mackenzie Valley and for all Canadians. In 24.4, “land” means the surface of land.
24.4.3
The decisions of the Land and Water Board shall be subject to review by the Minister in a manner to be provided in legislation.
24.4.4
Legislation may provide the Land and Water Board with the power to subpoena witnesses and documents in carrying out its responsibilities.
24.4.5
The Land and Water Board shall have the following powers:
issue, amend or renew licences, permits and authorizations and the terms and conditions attaching thereto for all uses of land and water, including those uses necessary for the exercise of subsurface rights, except where those powers are exercised by a municipality or local government with respect to land within such local government boundaries; oversee compliance with its decisions through inspections or otherwise, provided there shall be no duplication of the compliance system as between the Land and Water Board and other government agencies or departments; enforce or secure compliance with its decisions by the suspension or cancellation of licences, permits and authorizations and such other methods as may be provided by legislation; establish policies and guidelines applicable to its licences, permits and authorizations; hold public consultations and hearings in communities in relation to any matter within its jurisdiction; establish procedures for the conduct of its business, including public hearings; propose changes to legislation in respect of land or water use to the Minister, and be consulted by the Minister on any proposed such legislation; and establish rules and procedures, including reasonable fixed time limits, for the negotiation of agreements under 19.1.15. Legislation may provide for the exemption from any requirement for a licence, permit or other authorization of particular uses of land or water. Legislation shall provide for reasonable notice to affected communities and to designated Gwich’in organizations of any application to the Land and Water Board for a licence, permit or authorization for a land or water use in the settlement area. Legislation may provide for the co-ordination of the activities of the Land and Water Board with other government agencies, departments and boards with responsibilities for the regulation of land and water use.
Land and Water Board (For Area Larger Than Settlement Area)
24.4.6
Where, by legislation, any other Land and Water Board is established having jurisdiction in an area which includes the settlement area, it shall assume the powers and responsibilities of the Land and Water Board in 24.4.1 and shall become the Land and Water Board for the purposes of this agreement. Legislation may provide for regional panels of the Land and Water Board in (a). The Gwich’in Tribal Council shall be consulted with respect to any such legislation.
Membership
24.4.7
There shall be equal membership from nominees of the Gwich’in Tribal Council and government, not including the chairperson, on the Land and Water Board established pursuant to 24.4.1 and on any regional panel established pursuant to 24.4.6(b) for the settlement area. In the case of a Land and Water Board established pursuant to 24.4.6(a), such Land and Water Board shall have no less than one member who is a nominee of the Gwich’in Tribal Council.
24.4.8
After the date of settlement legislation and prior to the enactment of the legislation establishing the Land and Water Board referred to in 24.4.1, no permit, licence or authorization for land or water use in the settlement area shall be issued by government without at least 30 days’ notice to the Gwich’in Tribal Council provided that the 30-day period may be reduced where it would be inconsistent with any provision contained in legislation.
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