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Vol. 139, No. 47 — November 19, 2005 Period for Entering into an Agreement for the Purpose of Jointly Establishing a Review Panel RegulationsStatutory authority Mackenzie Valley Resource Management Act Sponsoring department Department of Indian Affairs and Northern Development
REGULATORY IMPACT (This statement is not part of the Regulations.) Description Two sets of regulations are required under the Mackenzie Valley Resource Management Act (MVRMA) to ensure the implementation of the land and water management regimes as negotiated in the Tlicho Agreement. The Regulations Amending the Mackenzie Valley Land Use Regulations are made pursuant to section 90 of the MVRMA and the Period for Entering into an Agreement for the Purpose of Jointly Establishing a Review Panel Regulations are made pursuant to paragraph 143(1)(g) of the MVRMA. Background The Tlicho Land Claims and Self-Government Agreement was signed by the Tlicho, the Government of the Northwest Territories, and the Government of Canada on August 25, 2003. Bill C-14, the Tlicho Land Claims and Self-Government Act (the Act) was introduced before Parliament on October 19, 2004, received Royal Assent on February 15, 2005, and came into force on August 4, 2005. The Act gives effect to the Tlicho Agreement and makes related amendments to the MVRMA. To reflect amendments to the MVRMA and ensure implementation of the land and water regime as negotiated in the Tlicho Agreement, the existing Mackenzie Valley Land Use Regulations (MVLUR) are amended, and a new set of regulations respecting negotiation periods for joint panels are made. Land and water management in the Mackenzie Valley The MVRMA established the Mackenzie Valley Land and Water Board (MVL&WB;) with authority over land and water use throughout the Valley, including two regional boards, serving as panels of the MVL&WB;, for the Gwich'in and Sahtu settlement areas. Some of the amendments to the MVRMA establish a third regional board for Wekeezhii, an area described in the Tlicho Agreement within the Tlicho traditional use area, to be known as the Wekeezhii Land and Water Board. The regional boards' responsibilities include the issuance, amendment or cancellation of land use permits for land and licences for water uses, where no impacts will occur outside their respective management areas. The existing MVLUR set out certain operational details for the use of land in the Mackenzie Valley, including details respecting applications for the use of land and the issuance of permits. Those Regulations set the level of land use for which a permit is required and establish two types of permits: "Type A" and "Type B." For example, a Type A permit would be required for a land use operation using more than 150 kg of explosives within a 30-day period. A Type B permit would be required for a land use operation that uses between 50 kg and 150 kg of explosives within a 30-day period. Some of the amendments to the MVRMA confirm that a person using Tlicho lands must obtain a permit, even if the MVLUR do not require one, where the Tlicho Government, through its law-making authority, requires a permit to use Tlicho lands. For example, if the MVLUR do not require a permit for the use of a campsite for a duration less than 200 person-days, the Tlicho Government may pass a law requiring a permit for establishing, on Tlicho lands, a campsite for less than 200 person-days. If it passed such a law, a person establishing a campsite for less than 200 person-days on Tlicho lands would have to obtain a permit from the Wekeezhii Land and Water Board. The amendments to the MVLUR ensure consistency with the amendments to the MVRMA. Most of the amendments to the MVLUR recognize the establishment of the Wekeezhii Land and Water Board and provide for a new type of permit—a "Type C" permit—for use of Tlicho land where the Tlicho Government has passed a law requiring a permit for use below the level for which a Type A or B permit is required. No fees are required for a Type C permit. The balance of the amendments to the MVLUR are administrative in nature and are required because of changes in the definition of terms used in the MVRMA. For example, the term "settlement area" in the MVRMA was amended to apply to only the Gwich'in and Sahtu settlement areas, and other terms, such as Wekeezhii or Monfwi Gogha De Niitlee, are used where there is a Tlicho interest. Likewise, the term "First Nation" in the MVRMA was amended to exclude the Tlicho. Other terms, such as "Tlicho Government," are used where the Tlicho are involved. Environmental assessment in the Mackenzie Valley The MVRMA establishes the Mackenzie Valley Environmental Impact Review Board (MVEIRB) with authority to conduct environmental assessments and reviews of development activities in the Mackenzie Valley. In some situations, a panel may be established jointly by the MVEIRB and another authority who has the responsibility to examine the environmental effects of that part of the development outside the Mackenzie Valley or by the MVEIRB and the Minister of the Environment where a referral has been made pursuant to paragraph 130(1)(c) of the MVRMA. The new section 138.1 and amended section 141 of the MVRMA provide for a time period to be set by regulations for the negotiation of a joint panel agreement. These sections provide for the review of a development to be carried out partly outside the Mackenzie Valley and partly in Wekeezhii, or which may have an impact on the environment in Wekeezhii. Should an agreement not be concluded within the prescribed time period, the MVEIRB must establish its own review panel to conduct a review. This review is limited to that part of the development carried out in the Mackenzie Valley. The Period for Entering into an Agreement for the Purpose of Jointly Establishing a Review Panel Regulations establish a 90-day period within which an agreement respecting such a joint review panel is to be concluded. The Regulations provide that this period starts from the date a proposal for a development project is referred to the Minister of the Environment, or from the date an environmental impact review of a proposal for development is ordered, depending on which provision of the MVRMA is involved. The 90-day period was determined to be long enough to allow the parties involved to explore the issues to be covered in such an agreement without undue delay in the establishment of a panel. Alternatives Amendments to the Mackenzie Valley Land Use Regulations An alternative to amending these Regulations is to leave them unchanged. This would create confusion for the land and water boards as to how to exercise their land use powers, since the Regulations would not be consistent with the MVRMA, as amended. Period for Entering into an Agreement for the Purpose of Jointly Establishing a Review Panel Regulations An alternative to setting time periods in the new Regulations is to not set any time period. However, this option would not be consistent with the MVRMA, as amended. It would also create undue delay in proceeding with the review. Another alternative would be to set a shorter (60-day) or longer (120-day) time period. However, a shorter period may not be sufficient to allow the parties to explore options, and a longer period may unduly delay the establishment of a panel. Benefits and costs Costs There are no additional costs associated with the Regulations Amending the Mackenzie Valley Land Use Regulations or the Period for Entering into an Agreement for the Purpose of Jointly Establishing a Review Panel Regulations. Benefits The amendments to the MVLUR ensure clarity and consistency with the amended MVRMA and ensure the implementation of the Tlicho Agreement. The Period for Entering into an Agreement for the Purpose of Jointly Establishing a Review Panel Regulations ensure that the process respecting the establishment of a joint review panel is undertaken in a timely manner by establishing a maximum 90-day period to negotiate an agreement respecting a joint review panel. The Tlicho First Nation, the business community, the Government of Canada, the Government of the Northwest Territories, as well as the general public benefit from the Period for Entering into an Agreement for the Purpose of Jointly Establishing a Review Panel Regulations, which clarify the time frame and promote increased efficiency and certainty for the environmental review process in the Mackenzie Valley by ensuring that reviews will proceed without undue delay from lengthy negotiations. Consultation Consultation on the proposed regulations was carried out in two stages. In the first stage, a policy document explaining the items to be addressed in the regulations was distributed for comment on September 16, 2004, to First Nations and Métis organizations in the Mackenzie Valley, the Mackenzie Valley Land and Water Board, the MVEIRB and other interested groups and associations. In the second stage, on July 29, 2005, the draft text of the regulations was provided to First Nations and Métis organizations in the Mackenzie Valley, the Mackenzie Valley Land and Water Board, the MVEIRB and other interested groups and associations for their comments. There was general agreement with the regulations; however, some concern was expressed about the 90-day period established in the regulations for negotiating a joint review panel agreement. The MVEIRB questioned whether the 90-day time period was long enough. The 90-day period was maintained to ensure that the joint review is carried out in a timely and effective manner. Compliance and enforcement Amendments to the Mackenzie Valley Land Use Regulations Compliance with and enforcement of these Regulations are secured through measures already in place pursuant to sections 86 to 89 of the MVRMA and sections 34 to 38 of the MVLUR. When a permit holder contravenes a condition of a permit, the permit holder is notified by the inspector to correct the contravention within a specific period of time. The inspector may order the cessation, the suspension, the cancellation or the discontinuance of the land use operation if the permit holder does not take any corrective measures. Period for Entering into an Agreement for the Purpose of Jointly Establishing a Review Panel Regulations No additional compliance and enforcement mechanisms are necessary for these Regulations as they were provided by the amendments to the MVRMA. In both section 138.1 and section 141 of the MVRMA, where the prescribed time period applies, the MVEIRB is required to establish its own panel to review that part of the development within the Mackenzie Valley if these time periods are exceeded. Stephen Van Dine, Indian and Northern Affairs Canada, Ottawa, Ontario K1A 0H4, (819) 953-8613 (telephone), (819) 953-0335 (fax), vandines@ainc-inac.gc.ca (email), and Robert Whittingham, Indian and Northern Affairs Canada, Ottawa, Ontario K1A 0H4, (819) 994-6416 (telephone), (819) 953-0335 (fax), whittinghamb@ainc-inac.gc.ca (email). Notice is hereby given that the Governor in Council, pursuant to paragraph 143(1)(g) (see footnote a) of the Mackenzie Valley Resource Management Act (see footnote b), proposes to make the annexed Period for Entering into an Agreement for the Purpose of Jointly Establishing a Review Panel Regulations. Interested persons may make representations with respect to the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Bob Whittingham, Senior Policy Analyst, Department of Indian Affairs and Northern Development, 10 Wellington Street, 6th Floor, Gatineau, Quebec K1A 0H4 (tel.: (819) 994-6416; fax: (819) 953-0335; email: WhittinghamB@ainc-inac.gc. ca). Persons making representations should identify any of those representations the disclosure of which should be refused under the Access to Information Act, in particular under sections 19 and 20 of that Act, and should indicate the reasons why and the period during which the representations should not be disclosed. They should also identify any representations for which there is consent to disclosure for the purposes of that Act. Ottawa, November 14, 2005 DIANE LABELLE PERIOD FOR ENTERING INTO AN AGREEMENT FOR THE PURPOSE OF JOINTLY ESTABLISHING A REVIEW PANEL REGULATIONS INTERPRETATION 1. In these Regulations, "Act" means the Mackenzie Valley Resource Management Act. TIME LIMITS 2. For the purpose of subsection 138.1(4) of the Act, the period is 90 days after the day on which the proposal is referred to the Minister of the Environment under paragraph 130(1)(c) of the Act. 3. For the purpose of subsection 141(4) of the Act, the period is 90 days after the day on which an environmental impact review of the proposal is ordered under subparagraph 128(1)(b)(i), paragraph 128(1)(c) or 130(1)(a), subparagraph 130(1)(b)(ii) or paragraph 131(1)(b) of the Act. COMING INTO FORCE 4. These Regulations come into force on the date of registration. [47-1-o] S.C. 2005, c. 1, s. 90(2) S.C. 1998, c. 25 |
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