Mackenzie Valley Resource Management Act (S.C. 1998, c. 25)

Short Title

Marginal note:Short title

1 This Act may be cited as the Mackenzie Valley Resource Management Act.

Interpretation

Marginal note:Definitions

2 The definitions in this section apply in this Act.

Déline Agreement

Déline Agreement means the Déline Final Self-Government Agreement among the Déline First Nation Band, the Déline Land Corporation, the Government of Canada and the Government of the Northwest Territories, signed on February 18, 2015, including any amendments made to it, that is approved, given effect and declared valid by the Déline Final Self-Government Agreement Act. (accord de Deline)

Déline Got’ine Government

Déline Got’ine Government means the government established in accordance with chapter 3 of the Déline Agreement. (gouvernement Gotine de Deline)

Déline lands

Déline lands means the lands whose title is vested in the Déline Got’ine Government in accordance with 21.2.1 of the Déline Agreement. (terres de Deline)

Déline law

Déline law has the meaning assigned by the definition DGG Law in chapter 1 of the Déline Agreement. (loi de Deline)

deposit of waste

deposit of waste means a deposit of waste in any waters in the Mackenzie Valley or in any other place under conditions in which the waste, or any other waste that results from the deposit of that waste, may enter any waters in the Mackenzie Valley. (dépôt de déchets)

environment

environment means the components of the Earth and includes

• (a) land, water and air, including all layers of the atmosphere;

• (b) all organic and inorganic matter and living organisms; and

• (c) the interacting natural systems that include components referred to in paragraphs (a) and (b). (environnement)

federal Minister

federal Minister means the Minister of Northern Affairs. (ministre fédéral)

first nation

first nation means the Gwich’in First Nation, the Sahtu First Nation or bodies representing other Dene or Metis of the North Slave, South Slave or Deh Cho region of the Mackenzie Valley, but does not include the Tlicho First Nation or the Tlicho Government. (première nation)

Gwich’in Agreement

Gwich’in Agreement means the Comprehensive Land Claim Agreement between Her Majesty the Queen in right of Canada and the Gwich’in as represented by the Gwich’in Tribal Council, signed on April 22, 1992 and approved, given effect and declared valid by the Gwich’in Land Claim Settlement Act, as that Agreement is amended from time to time in accordance with its provisions. (accord gwich’in)

Gwich’in First Nation

Gwich’in First Nation means the Gwich’in as represented by the Gwich’in Tribal Council referred to in the Gwich’in Agreement or by any successor to it. (première nation des Gwich’in)

harvesting

harvesting, in relation to wildlife, means hunting, trapping or fishing activities carried on in conformity with a land claim agreement or, in respect of persons and places not subject to a land claim agreement, carried on pursuant to aboriginal or treaty rights. (exploitation)

heritage resources

heritage resources means archaeological or historic sites, burial sites, artifacts and other objects of historical, cultural or religious significance, and historical or cultural records. (ressources patrimoniales)

land claim agreement

land claim agreement means the Gwich’in Agreement, the Sahtu Agreement or the Tlicho Agreement. (accord de revendication)

local government

local government means any local government established under the laws of the Northwest Territories, including a city, town, village, hamlet, charter community, settlement or government of a Tlicho community, whether incorporated or not, and includes the territorial government in the case where it is acting in the place of that local government in accordance with those laws. It also includes the Déline Got’ine Government in the case where it is exercising the jurisdiction and authority set out in 9.1 of the Déline Agreement. (administration locale)

Mackenzie Valley

Mackenzie Valley means that part of the Northwest Territories bounded on the south by the 60th parallel of latitude, on the west by Yukon, on the north by the Inuvialuit Settlement Region, as defined in the Agreement given effect by the Western Arctic (Inuvialuit) Claims Settlement Act , and on the east by the Nunavut Settlement Area, as defined in the Nunavut Land Claims Agreement Act , but does not include Wood Buffalo National Park of Canada. (vallée du Mackenzie)

Monfwi Gogha De Niitlee

Monfwi Gogha De Niitlee means the area described in part 1 of the appendix to chapter 1 of the Tlicho Agreement. (Monfwi gogha de niitlee)

Sahtu Agreement

Sahtu Agreement means the Comprehensive Land Claim Agreement between Her Majesty the Queen in right of Canada and the Sahtu Dene and Metis as represented by the Sahtu Tribal Council, signed on September 6, 1993 and approved, given effect and declared valid by the Sahtu Dene and Metis Land Claim Settlement Act, as that Agreement is amended from time to time in accordance with its provisions. (accord du Sahtu)

Sahtu First Nation

Sahtu First Nation means the Sahtu Dene and Metis as represented by The Sahtu Secretariat Incorporated, a corporation without share capital under Part II of the Canada Corporations Act, R.S.C. 1970, c. C-32, being the successor, for the purposes of this Act, to the Sahtu Tribal Council referred to in the Sahtu Agreement, or by any successor to that corporation. It also includes the Déline Got’ine Government in the case where The Sahtu Secretariat Incorporated or its successor has made a delegation or assignment to that government of any powers and functions conferred under this Act. (première nation du Sahtu)

settlement area

settlement area means the area described in appendix A to the Gwich’in Agreement or in appendix A to the Sahtu Agreement. (région désignée)

settlement lands

settlement lands means lands referred to as settlement lands in the Gwich’in Agreement or the Sahtu Agreement. (terres désignées)

territorial government

territorial government means the government of the Northwest Territories. (gouvernement territorial)

territorial law

territorial law means any law of the Legislature of the Northwest Territories. (règle de droit territoriale)

territorial Minister

territorial Minister, in relation to any provision of this Act, means the minister of the territorial government designated by instrument of the Executive Council of the Northwest Territories for the purposes of that provision. (ministre territorial)

Tlicho Agreement

Tlicho Agreement means the Land Claims and Self-Government Agreement among the Tlicho, the Government of the Northwest Territories and the Government of Canada, signed on August 25, 2003 and approved, given effect and declared valid by the Tlicho Land Claims and Self-Government Act, as that Agreement is amended from time to time in accordance with its provisions. (accord tlicho)

Tlicho citizen

Tlicho citizen means a person whose name is on the Register as defined in chapter 1 of the Tlicho Agreement. (citoyen tlicho)

Tlicho community

Tlicho community means a community for which a community government is established in accordance with chapter 8 of the Tlicho Agreement. (collectivité tlicho)

Tlicho First Nation

Tlicho First Nation means the aboriginal people of Canada to whom section 35 of the Constitution Act, 1982 applies, consisting of all Tlicho citizens. (première nation tlicho)

Tlicho Government

Tlicho Government means the government of the Tlicho First Nation established in accord­ance with chapter 7 of the Tlicho Agreement. (gouvernement tlicho)

Tlicho lands

Tlicho lands means Tlicho lands as defined in chapter 1 of the Tlicho Agreement. (terres tlichos)

Tlicho law

Tlicho law means a law enacted by the Tlicho Government. (loi tlicho)

Wekeezhii

Wekeezhii means the area described in part 2 of the appendix to chapter 1 of the Tlicho Agreement. (Wekeezhii)

Marginal note:Consultation

3 Wherever in this Act reference is made, in relation to any matter, to a power or duty to consult, that power or duty shall be exercised

• (a) by providing, to the party to be consulted,

  • (i) notice of the matter in sufficient form and detail to allow the party to prepare its views on the matter,

  • (ii) a reasonable period for the party to prepare those views, and

  • (iii) an opportunity to present those views to the party having the power or duty to consult; and

• (b) by considering, fully and impartially, any views so presented.

Marginal note:Delegation

• 4 (1) The federal Minister may delegate, in writing, any of his or her powers, duties or functions under this Act — either generally or as otherwise provided in the instrument of delegation — to the minister of the Northwest Territories designated by the Commissioner of the Northwest Territories for the purposes of this section.

• Marginal note:Included functions

  (2) The functions of the federal Minister referred to in subsection (1) include the power to delegate duties pursuant to section 122.

• Marginal note:Delegation to aboriginal organizations

  (3) A first nation may, in conformity with its land claim agreement, delegate any of the functions of the first nation under this Act to an aboriginal organization designated by it.

• Marginal note:Delegation by Tlicho Government

  (4) The Tlicho Government may, in conformity with the Tlicho Agreement, delegate any of its functions under this Act to

  • (a) a body or office established by a Tlicho law;

  • (b) any department, agency or office of the federal or the territorial government;

  • (c) a board or other public body established by or under an Act of Parliament or by a territorial law; or

  • (d) a local government.

• Marginal note:Delegation by Déline Got’ine Government

  (5) The Déline Got’ine Government may, in conformity with the Déline Agreement, delegate any of its functions under this Act to

  • (a) a body or office established by a Déline law;

  • (b) a department, agency or office of the federal or the territorial government;

  • (c) a board or other public body established by or under an Act of Parliament or by a territorial law; or

  • (d) any other entity.

Marginal note:Conflict

• 5 (1) If there is any inconsistency or conflict between this Act and a land claim agreement, the Déline Agreement, an Act giving effect to any of those agreements or the Indian Act, then the land claim agreement, the Déline Agreement, the Act or the Indian Act prevails over this Act to the extent of the inconsistency or conflict.

• Marginal note:Aboriginal rights

  (2) For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.

Marginal note:Agreement between Tlicho Government and another aboriginal people

5.1 The rights of the Tlicho First Nation, Tlicho citizens and the Tlicho Government under this Act are subject to the provisions of any agreement entered into between the Tlicho Government and an aboriginal people, other than the Tlicho First Nation, under 2.7.3 of chapter 2 of the Tlicho Agreement.

Marginal note:Time limits

• 5.2 (1) The failure of any of the following to exercise a power or perform a duty or function within a period or time limit fixed or prescribed under this Act does not terminate their authority to do so nor does it invalidate any document prepared or submitted or any decision or action taken in the exercise of such a power or the performance of such duty or function:

  • (a) the federal Minister;

  • (b) the Gwich’in Land Use Planning Board;

  • (c) the Sahtu Land Use Planning Board;

  • (d) the Gwich’in Land and Water Board;

  • (e) the Sahtu Land and Water Board;

  • (f) the Wekeezhii Land and Water Board;

  • (g) the Mackenzie Valley Land and Water Board;

  • (h) a responsible minister, as defined in section 111;

  • (i) the Mackenzie Valley Environmental Impact Review Board or one of its panels;

  • (j) a joint panel established under subsection 140(2) or paragraph 141(2)(b) or (3)(a) or a review panel referred to in subsection 40(2) of the Impact Assessment Act; and

  • (k) a designated regulatory agency, as defined in section 111.

• Marginal note:Exception

  (2) Subsection (1) does not apply with respect to

  • (a) the periods fixed by regulations referred to in subsections 138.1(2), (3) and (4) and 141(4); and

  • (b) any other period or time limit fixed by regulations that is exempted from the application of subsection (1) by regulation.

• Marginal note:Regulations

  (3) The Governor in Council may, by regulation, exempt a period or time limit set out in the regulations, other than those referred to in paragraph 2(a), from the application of subsection (1).

Application and Consultation

Marginal note:Application

6 Except where otherwise provided, this Act applies in the Mackenzie Valley.

Marginal note:Application to Her Majesty

7 This Act is binding on Her Majesty in right of Canada or a province, except that Her Majesty in right of Canada is not required to pay any fee prescribed by regulations made under paragraph 90.3(1)(k) or subparagraph 90.3(2)(a)(i).

Marginal note:Waters vested in Her Majesty

7.1 Subject to any rights, powers or privileges granted or preserved under the Dominion Water Power Act, the property in and the right to the use and flow of all waters are vested in Her Majesty in right of Canada.

Marginal note:Other Acts, etc., to be complied with

7.2 For greater certainty, nothing in this Act, the regulations or a licence or permit, as defined in section 51, authorizes a person to contravene or fail to comply with any other Act or any regulation or order made under it, except as provided in that other Act, regulation or order.

Marginal note:Consultation

• 8 (1) The federal Minister shall consult the first nations, the Tlicho Government and the Déline Got’ine Government with respect to the amendment of this Act.

• Marginal note:Review of Act

  (2) The federal Minister shall, in the course of any negotiations with a first nation relating to self-government, review the pertinent provisions of this Act in consultation with that first nation.

PART 1General Provisions Respecting Boards

Establishment and Organization

Definition of board

9 In this Part, board means any board established by this Act.

Marginal note:Purpose

9.1 The purpose of the establishment of boards by this Act is to enable residents of the Mackenzie Valley to participate in the management of its resources for the benefit of the residents and of other Canadians.

Marginal note:Capacity

10 A board has, for the purposes of its functions, the capacity, rights, powers and privileges of a natural person.

Marginal note:Appointment of members by federal Minister

• 11 (1) The members of a board — other than the chairperson, any members appointed pursuant to a determination under section 15 and any members appointed by the Tlicho Government under subsection 57.1(2) or in accordance with an agreement referred to in that subsection — shall be appointed by the federal Minister in accordance with Parts 2 to 5.

• Marginal note:Alternate members

  (2) Except in the case of the Wekeezhii Land and Water Board, the federal Minister may appoint

  • (a) alternate members selected from persons nominated for that purpose by a first nation, or selected following consultation with first nations, to act in the event of the absence or incapacity of members appointed on such nomination or following such consultation, respectively; and

  • (b) alternate members agreed to by the territorial Minister to act in the event of the absence or incapacity of members other than members referred to in paragraph (a).

Marginal note:Chairperson

• 12 (1) Except in the case of the Wekeezhii Land and Water Board, the chairperson of a board shall be appointed by the federal Minister from persons nominated by a majority of the members.

• Marginal note:Appointment by federal Minister

  (2) Except in the case of the Wekeezhii Land and Water Board, if a majority of the members does not nominate a person acceptable to the federal Minister within a reasonable time, the Minister may appoint any person as chairperson of the board.

• Marginal note:Wekeezhii Land and Water Board

  (2.1) The chairperson of the Wekeezhii Land and Water Board shall be appointed jointly by the federal Minister and the Tlicho Government on the nomination of the members of the Board other than the chairperson.

• Marginal note:Absence or incapacity of chairperson

  (3) The board may designate a member to act as its chairperson during the absence or incapacity of the chairperson or a vacancy in the office of chairperson, and that person while so acting may exercise the powers and shall perform the duties of the chairperson.

Marginal note:Duties of chairperson

13 The chairperson of a board is its chief executive officer and has the powers and duties prescribed by the by-laws of the board.

Marginal note:Term of office

• 14 (1) A member of a board holds office for a term of three years.

• Marginal note:Reappointment

  (2) A member may be reappointed in the same or another capacity.

• Marginal note:Removal by federal Minister after consultation

  (3) A member who has been appointed by the federal Minister may not be removed from office except after consultation by the federal Minister with the board and, where applicable, with the territorial Minister, the first nation or the Tlicho Government that nominated the member.

• Marginal note:Removal by Tlicho Government after consultation

  (4) A member of the Wekeezhii Land and Water Board who has been appointed by the Tlicho Government may not be removed from office except after consultation by the Tlicho Government with the Board and the federal Minister.

Marginal note:Implementation of right of representation of other Aboriginal peoples

15 Despite any provision of this Act respecting members of a board, if an Aboriginal people has a right under a land claim agreement to representation on that board in relation to a decision of the board that might affect an area used by that Aboriginal people that is outside the board’s area of jurisdiction, the board shall, in accordance with that land claim agreement, determine how to implement that right, so long as the number of members who are either nominated by a first nation, nominated or appointed by the Tlicho Government or appointed following consultation by the federal Minister with the first nations of the regions of the Mackenzie Valley outside the settlement areas and Wekeezhii, as the case may be, and who are temporarily appointed to implement that right remains equal to the number of other members not including the chairperson.

Marginal note:Conflict of interest

• 16 (1) A member of a board may not act in relation to an application to the board or participate in a decision of the board that would place the member in a material conflict of interest.

• Marginal note:Status or entitlements under agreement

  (2) A member of a board is not placed in a material conflict of interest merely because of any status or entitlement conferred on the member under the Gwich’in Agreement, the Sahtu Agreement, the Tlicho Agreement or any other agreement between a first nation and Her Majesty in right of Canada for the settlement of a claim to lands or under the Déline Agreement.

Marginal note:Remuneration

• 17 (1) Members of a board, including any members appointed in accordance with a determination under section 15, shall be paid the fees or other remuneration that the federal Minister may fix.

• Marginal note:Expenses

  (2) Such members shall be paid such travel and living expenses, incurred by them while absent from their ordinary place of residence in the course of performing their duties, as are consistent with directives of the Treasury Board.

Marginal note:Staff

• 18 (1) A board may employ such persons and engage the services of such agents, advisers and experts as are necessary for the proper conduct of its business and may fix the conditions of their employment or engagement and pay their remuneration.

• Marginal note:Sharing of staff and facilities

  (2) The boards may share staff and facilities with one another for the effective and efficient conduct of their affairs.

Marginal note:Benefits

19 The members of a board and its employees are deemed to be employees for the purposes of the Government Employees Compensation Act and to be employed in the federal public administration for the purposes of any regulations made pursuant to section 9 of the Aeronautics Act.

Marginal note:Protection from personal liability

20 The members and employees of a board are not liable for anything done or omitted to be done in good faith in the exercise or performance or purported exercise or performance of any powers, duties or functions under this Act.

General Powers

Marginal note:Decision by majority

• 21 (1) A decision of a majority of the members of a board present at a meeting is a decision of the board.

• Marginal note:Participation by telephone

  (2) Subject to the by-laws of a board, any member may participate in a meeting by means of telephone or other communications facilities that are likely to enable all persons participating in the meeting to hear each other, and a member so participating is deemed to be present at the meeting.

Marginal note:Government information

22 Subject to any other federal or territorial law and to any Tlicho law or Déline law, a board may obtain from any department or agency of the federal or territorial government, the Tlicho Government or the Déline Got’ine Government any information in the possession of the department, agency, Tlicho Government or Déline Got’ine Government that the board requires for the performance of its functions.

Marginal note:Enforcement of orders

23 A decision or order of a board may be made an order of the Supreme Court of the Northwest Territories by the filing of a certified copy of it with the registrar of the Court, and a decision or order so filed is enforceable in the same manner as an order of that Court.

Marginal note:Hearings

24 In addition to hearings that a board is authorized or required to hold under this Act, a board may conduct any hearings that it considers to be desirable for the purpose of carrying out any of its functions.

Marginal note:Coordination

24.1 A board shall coordinate its activities, including hearings, with the activities of

• (a) other boards;

• (b) departments and agencies of the federal government that have responsibility for the administration, management and control of parks to which the Canada National Parks Act applies or lands acquired pursuant to the Historic Sites and Monuments Act;

• (c) committees established under any of the land claim agreements for the management of parks to which the Canada National Parks Act applies;

• (d) committees, or similar bodies, established for the management of protected areas as defined in any of the land claim agreements;

• (e) renewable resources boards established under any of the land claim agreements; and

• (f) land use planning bodies established for Wekeezhii or any part of Wekeezhii.

Marginal note:Judicial powers of a board

25 In proceedings before a board established under Part 3, 4 or 5, the board has the powers, rights and privileges of a superior court with respect to the attendance and examination of witnesses and the production and inspection of documents.

Financial Provisions

Marginal note:Annual budget

• 26 (1) A board shall in each year submit for the consideration of the federal Minister an operating budget for the following fiscal year.

• Marginal note:Accounts

  (2) A board shall maintain books of account and related records in accordance with accounting principles recommended by the Chartered Professional Accountants of Canada or its successor.

• Marginal note:Consolidated financial statements

  (3) A board shall annually prepare consolidated financial statements in accordance with the accounting principles referred to in subsection (2) and shall include in them such supporting information or statements as are required.

• Marginal note:Audit

  (4) The accounts, financial statements and financial transactions of a board may be audited by the Auditor General of Canada, who shall make a report of the audit to the board, which shall transmit the report to the federal Minister.

• Marginal note:Funding

  (5) The federal Minister may establish funding arrangements with each board specifying the manner in which funding will be made available pursuant to a budget approved by the federal Minister.

Marginal note:Payment of fees

27 Fees paid pursuant to any provision of this Act or the regulations shall be deposited to the credit of the Receiver General.

Reports

Marginal note:Annual report

• 28 (1) A board shall, within three months after the end of each fiscal year, submit to the federal Minister, in such form as the Minister may specify, a report on the activities of the board in that year including its financial statements for the year.

• Marginal note:Publication

  (2) The federal Minister shall make the annual report of a board available to the public.

By-laws, Rules and Other Instruments

Marginal note:By-laws

29 A board may make by-laws respecting the conduct and management of its internal administrative affairs, including by-laws providing for the maintenance at its office of the minutes of its meetings.

Marginal note:Rules

• 30 (1) Subject to any other provisions of this Act, a board may make rules

  • (a) respecting its practice and procedure in relation to applications to the board and their disposition, including the service of documents, the imposition of reasonable time limits and the submission of comments by the public; and

  • (b) for preventing trade secrets and information described in section 20 of the Access to Information Act from being disclosed or made public as a result of their being used as evidence before the board, including rules providing for hearings to be held in private.

• Marginal note:Publication of notice

  (2) Before making rules under this section, a board shall publish notice of its intention in the Canada Gazette and in a newspaper circulated in the Mackenzie Valley, inviting interested persons to submit written representations to the board with respect to the proposed rules within thirty days after the publication of notice.

• Marginal note:No further notice

  (3) Where notice is published under subsection (2), further notice need not be published if the proposed rules are amended solely in response to representations submitted to the board.

Marginal note:Statutory Instruments Act

• 31 (1) Sections 3, 5 and 11 of the Statutory Instruments Act do not apply in respect of rules under section 30, a land use plan or amendment to a land use plan under Part 2, rules under subsection 49(2), guidelines or policies under section 65, policy directions under subsection 50.1(1) or 83(1), (2) or (2.1), directions under section 106, policy directions under section 109 or 109.1 or subsection 142.2(1) or guidelines under section 120.

• Marginal note:Notice in Canada Gazette

  (2) A notice shall be published in the Canada Gazette immediately after policy directions are received by a board, a land use plan or amendment thereto is approved, or any other instrument referred to in subsection (1) is made or issued, stating that copies thereof are available to the public at the main office of the board and at such other locations as the board considers appropriate.

• Marginal note:Statutory Instruments Act

  (3) For greater certainty, licences and permits issued by a board under Part 3 or 4, either before or after the coming into force of this subsection, as enacted by subsection 128(3) of the Northwest Territories Devolution Act, are not statutory instruments as defined in the Statutory Instruments Act.

Jurisdiction of Courts

Marginal note:Exclusive original jurisdiction

32 Despite section 18 of the Federal Courts Act, the Supreme Court of the Northwest Territories has exclusive original jurisdiction to hear and determine an application for any relief against a board by way of an injunction or declaration or by way of an order in the nature of certiorari, mandamus, quo warranto or prohibition by the Attorney General of Canada, the Attorney General of the Northwest Territories or anyone directly affected by the matter in respect of which relief is sought.

PART 2Land Use Planning

Interpretation and Application

Definition of planning board

33 In this Part, planning board means the Gwich’in Land Use Planning Board or the Sahtu Land Use Planning Board established by sections 36 and 38, respectively.

Marginal note:Application of Part 2

34 Subject to subsection 46(2), this Part does not apply in respect of lands in a settlement area that comprise a park to which the Canada National Parks Act applies, that have been acquired pursuant to the Historic Sites and Monuments Act or that are situated within the boundaries of a local government.

Marginal note:Guiding principles

35 Land use planning for a settlement area shall be guided by the following principles:

• (a) the purpose of land use planning is to protect and promote the social, cultural and economic well-being of residents and communities in the settlement area, having regard to the interests of all Canadians;

• (b) special attention shall be devoted to the rights of the Gwich’in and Sahtu First Nations under their land claim agreements, to protecting and promoting their social, cultural and economic well-being and to the lands used by them for wildlife harvesting and other resource uses; and

• (c) land use planning must involve the participation of the first nation and of residents and communities in the settlement area.

Gwich’in Land Use Planning Board

Marginal note:Board established

• 36 (1) There is hereby established, in respect of the settlement area referred to in the Gwich’in Agreement, a board to be known as the Gwich’in Land Use Planning Board.

• Marginal note:Membership

  (2) The Board shall consist of five members including, apart from the chairperson, two members appointed on the nomination of the Gwich’in First Nation and one member appointed on the nomination of the territorial Minister.

• Marginal note:Quorum

  (3) A quorum of the Board consists of three members, including one of the members appointed on the nomination of the Gwich’in First Nation and one of the members not so appointed other than the chairperson.

Marginal note:Main office

37 The main office of the Board shall be located in the settlement area referred to in the Gwich’in Agreement.

Sahtu Land Use Planning Board

Marginal note:Board established

• 38 (1) There is hereby established, in respect of the settlement area referred to in the Sahtu Agreement, a board to be known as the Sahtu Land Use Planning Board.

• Marginal note:Membership

  (2) The Board shall consist of five members including, apart from the chairperson, two members appointed on the nomination of the Sahtu First Nation and one member appointed on the nomination of the territorial Minister.

• Marginal note:Quorum

  (3) A quorum of the Board consists of three members, including one of the members appointed on the nomination of the Sahtu First Nation and one of the members not so appointed other than the chairperson.

Marginal note:Main office

39 The main office of the Board shall be located in the settlement area referred to in the Sahtu Agreement.

Land Use Planning

Marginal note:Objectives and other factors

40 The planning board for a settlement area shall, after consultation with the federal Minister, the territorial Minister and the first nation of the settlement area, determine the objectives to be considered and the other factors to be taken into account in the preparation of a land use plan for the settlement area.

Marginal note:Preparation of land use plan

• 41 (1) A planning board shall prepare and adopt a land use plan for submission and approval under section 43.

• Marginal note:Purpose of land use plan

  (2) A land use plan shall provide for the conservation, development and use of land, waters and other resources in a settlement area.

• Marginal note:Contents of land use plan

  (3) A land use plan may include

  • (a) maps, diagrams and other graphic materials;

  • (b) written statements, policies, guidelines and forecasts;

  • (c) descriptions of permitted and prohibited uses of land, waters and resources;

  • (d) authority for the planning board to make exceptions to the plan and the manner of exercising that authority; and

  • (e) any other information that the planning board considers appropriate.

• Marginal note:Settlement lands

  (4) A planning board shall take into consideration a land use plan proposed by the first nation for its settlement lands in the settlement area, and may incorporate that plan into the land use plan for the settlement area.

Marginal note:Public notice

• 42 (1) A planning board shall publish in the settlement area and in adjoining settlement areas in the Mackenzie Valley a notice inviting interested persons to examine at specified times and places a draft of the land use plan prepared by it.

• Marginal note:Public hearings

  (2) A planning board may hold public hearings in relation to a proposed land use plan after publishing in the settlement area and in adjoining settlement areas in the Mackenzie Valley a notice specifying the times and places of the hearings and the procedure to be followed.

Marginal note:Submission to first nation and Ministers

• 43 (1) Following the adoption of a land use plan, the planning board shall submit it to the first nation of the settlement area, the territorial Minister and the federal Minister.

• Marginal note:Approval by first nation

  (2) Where a first nation approves a land use plan, it shall notify the federal Minister and the territorial Minister in writing of the approval.

• Marginal note:Territorial approval

  (3) On being notified pursuant to subsection (2), the territorial Minister may approve the land use plan, and in that case shall notify the first nation and the federal Minister in writing.

• Marginal note:Federal approval

  (4) On being notified under subsections (2) and (3), the federal Minister may approve the land use plan, which takes effect on the date of its approval by the federal Minister.

• Marginal note:Objections to plan

  (5) Where a party to which a land use plan is submitted does not approve the plan, that party shall notify the other parties and the planning board, in writing, of the reasons for not approving the plan.

• Marginal note:Reconsideration of plan

  (6) After a planning board has considered any reasons provided to it under subsection (5) and made any modifications to the land use plan that it considers desirable, it shall submit the plan for approval as provided in subsection (1).

Marginal note:Functions after plan approval

44 Subsequent to the approval of a land use plan, a planning board shall

• (a) monitor the implementation of the plan; and

• (b) where so authorized by the plan, consider applications for exceptions to the plan.

Marginal note:Cooperative planning

• 45 (1) The planning board for a settlement area may cooperate with any body responsible for land use planning in any other area, either within or outside the Northwest Territories, that is adjacent to the settlement area.

• Marginal note:Joint land use plans

  (2) A planning board may, in conjunction with a body referred to in subsection (1), prepare a land use plan for the settlement area and an adjacent area of the Mackenzie Valley, which shall be subject to the requirements of this Part in respect of the portion of the plan relating to the settlement area.

Compliance with Plans

Marginal note:First nations, governments and licensing bodies

• 46 (1) The Gwich’in and Sahtu First Nations, departments and agencies of the federal and territorial governments, and every body having authority under any federal or territorial law to issue licences, permits or other authorizations relating to the use of land or waters or the deposit of waste, shall carry out their powers in accordance with the land use plan applicable in a settlement area.

• Marginal note:National parks and historic sites

  (2) In particular, measures carried out by a department or agency of government leading to the establishment of a park subject to the Canada National Parks Act, and the acquisition of lands pursuant to the Historic Sites and Monuments Act, in a settlement area shall be carried out in accordance with the applicable land use plan.

Marginal note:Determination of conformity

• 47 (1) A planning board shall determine whether an activity is in accordance with a land use plan where

  • (a) the activity is referred to the planning board by a first nation or a department or agency of the federal or territorial government or by the body having authority under any federal or territorial law to issue a licence, permit or other authorization in respect of the activity; or

  • (b) an application for such a determination is made by any person directly affected by an activity for which an application has been made for a licence, permit or authorization.

• Marginal note:Time of referral

  (2) The referral or application must be made before the issuance of any licence, permit or other authorization required for the activity.

• Marginal note:Transmission of decision

  (3) A planning board shall transmit its decision to the first nation, department, agency, body or person that made a referral or application under subsection (1).

• Marginal note:Final decision

  (4) Subject to section 32, a decision of a planning board under this section is final and binding.

Marginal note:Amendment of plan

• 48 (1) A planning board may, on application or on its own motion, adopt any amendments to a land use plan that the planning board considers necessary.

• Marginal note:Adoption and approval

  (2) Sections 42 and 43 apply, with such modifications as are required, in respect of any amendment to a land use plan.

Marginal note:Record keeping and access

• 49 (1) A planning board shall

  • (a) keep a public record of all applications made to it and all decisions made by it;

  • (b) furnish, on request and on the payment of a fee prescribed under subsection (2), copies of a land use plan or of any decision made by it; and

  • (c) have the custody and care of all documents filed with it.

• Marginal note:Fees

  (2) A planning board may, subject to the approval of the federal Minister, make rules prescribing fees for copies furnished pursuant to paragraph (1)(b), not exceeding the cost of furnishing them.

Comprehensive Review

Marginal note:Periodic review

50 A planning board shall carry out a comprehensive review of a land use plan not later than five years after the plan takes effect and thereafter every five years or at any other intervals agreed to by the federal Minister, the territorial Minister and the first nation of the settlement area.

Policy Directions

Marginal note:Minister’s policy directions to board

• 50.1 (1) The federal Minister may, after consultation with a planning board, give written policy directions that are binding on the planning board with respect to the exercise of any of its functions under this Act.

• Marginal note:Limitation

  (2) Policy directions do not apply in respect of an application referred to in paragraph 44(b), a referral or application under subsection 47(1) or a proposed amendment to a land use plan under subsection 48(1) that, at the time the directions are given, is before the planning board.

• Marginal note:Conflict

  (3) If there is a conflict between the policy directions given under this section and the provisions of any Act of Parliament, any regulations made under an Act of Parliament or any territorial law, those provisions prevail to the extent of the conflict.

PART 3Land and Water Regulation

Interpretation and Application

Marginal note:Definitions

51 The definitions in this section apply in this Part.

appurtenant undertaking

appurtenant undertaking means the work described in a licence. (entreprise en cause)

authorized user

authorized user means a person who uses waters without a licence but under the authority of regulations made under paragraph 90.3(1)(m). (usager agréé)

authorized waste depositor

authorized waste depositor means a person who deposits waste without a licence but under the authority of regulations made under paragraph 90.3(1)(n). (personne autorisée à déposer des déchets)

board

board means the Gwich’in Land and Water Board, the Sahtu Land and Water Board or the Wekeezhii Land and Water Board established by sections 54, 56 and 57.1, respectively. (office)

domestic user

domestic user means a person who uses waters

• (a) for household requirements, including sanitation and fire prevention;

• (b) for the watering of domestic animals; or

• (c) for the irrigation of a garden adjoining a dwelling-house that is not ordinarily used in the growth of produce for a market. (usager domestique)

federal area

federal area means any lands under the administration and control of a minister of the Government of Canada and any land on which is situated a waste site for which the Management — as defined in the Northwest Territories Lands and Resources Devolution Agreement that was made on June 25, 2013 — is the responsibility of the Government of Canada. (zone fédérale)

first nation lands

first nation lands, in relation to a first nation, means

• (a) settlement lands of the first nation; or

• (b) lands situated within the boundaries of a local government and referred to in the first nation’s land claim agreement as municipal lands. (terres d’une première nation)

instream user

instream user means a person who uses waters, otherwise than as described in paragraph (a), (b) or (c) of the definition use, to earn income or for subsistence purposes. (usager ordinaire)

land

land means the surface of land. (terres)

licence

licence means

• (a) with respect to a federal area, a type A or type B licence permitting the use of waters or the deposit of waste, or both, issued by a board under this Part; or

• (b) with respect to lands outside a federal area, a type A or type B licence, or any other licence relating to the use of waters or the deposit of waste, or both, issued by a board under this Part in accordance with any territorial law. (permis d’utilisation des eaux)

management area

management area means an area in respect of which a board has been established, namely,

• (a) in the case of the Gwich’in Land and Water Board, the area described in appendix A to the Gwich’in Agreement;

• (b) in the case of the Sahtu Land and Water Board, the area described in appendix A to the Sahtu Agreement; and

• (c) in the case of the Wekeezhii Land and Water Board, Wekeezhii. (zone de gestion)

permit

permit means a permit for the use of land issued by a board under this Part, and “permittee” has a corresponding meaning. (permis d’utilisation des terres)

use

use, in relation to waters, means a direct or indirect use of any kind other than a use connected with shipping activities that are governed by the Canada Shipping Act, 2001, including

• (a) any diversion or obstruction of waters;

• (b) any alteration of the flow of waters; and

• (c) any alteration of the bed or banks of a river, stream, lake or other body of water, whether or not the body of water is seasonal. (utilisation)

waste

waste means any substance that would, to an extent that is detrimental to its use by people or by any animal, fish or plant, degrade or alter or form part of a process of degradation or alteration of the quality of any water to which it is added. Alternatively, it means any water that contains a substance in such a quantity or concentration or that has been so treated, processed or changed, by heat or other means, that it would, if added to any other water, degrade or alter or form part of a process of degradation or alteration of the quality of that other water to which it is added. It includes

• (a) any substance or water that is deemed, under subsection 2(2) of the Canada Water Act, to be waste;

• (b) any substance or class of substances prescribed by regulations made under subparagraph 90.3(1)(b)(i);

• (c) water that contains any substance or class of substances in a quantity or concentration that is equal to or greater than a quantity or concentration prescribed in respect of that substance or class of substances by regulations made under subparagraph 90.3(1)(b)(ii); and

• (d) water that has been subjected to a treatment, process or change prescribed by regulations made under subparagraph 90.3(1)(b)(iii). (déchet)

waste site

waste site has the same meaning as Waste Site in the Northwest Territories Lands and Resources Devolution Agreement that was made on June 25, 2013. (décharge publique)

water authority

water authority means a board or other authority having jurisdiction in relation to the use of waters or the deposit of waste in any portion of the Northwest Territories or Nunavut. (autorité de gestion des eaux)

water management area

water management area means a water management area established by the Governor in Council by regulations made under subparagraph 90.3(1)(a)(i). (zone de gestion des eaux)

waters

waters means any inland waters, whether in a liquid or frozen state, on or below the surface of land. (eaux)

Marginal note:National parks and historic sites

• 52 (1) This Part, except sections 78, 79, 79.2 and 79.3, does not apply in respect of the use of land or waters or the deposit of waste within a park to which the Canada National Parks Act applies or within lands acquired pursuant to the Historic Sites and Monuments Act.

• Marginal note:Consultation with board

  (2) Notwithstanding subsection (1), an authority responsible for authorizing uses of land or waters or deposits of waste in a portion of a management area excluded by that subsection from the application of this Part shall consult the board established for that management area before authorizing any such use or deposit.

• Marginal note:Consultation with authority

  (3) A board shall consult a responsible authority referred to in subsection (2) before issuing a licence, permit or authorization for a use of land or waters or deposit of waste that may have an effect in the portion of the management area in which the authority is responsible.

Marginal note:Local government

• 53 (1) This Part does not apply in respect of the use of land within the boundaries of a local government to the extent that the local government regulates that use.

• Marginal note:Agreement

  (2) The board established for a settlement area and the territorial Minister shall, in consultation with each local government, jointly determine the extent to which the local government regulates the use of land within its boundaries for the purposes of subsection (1).

• Marginal note:Dissemination

  (3) A determination under subsection (2) shall be made available to the public at the main office of the board and that of the local government.

Marginal note:Federal area — addition

• 53.1 (1) If the Government of Canada becomes responsible for the Management — as defined in the Northwest Territories Lands and Resources Devolution Agreement that was made on June 25, 2013 — of a waste site, the federal Minister shall immediately notify the board in writing of the lands on which the waste site is situated.

• Marginal note:Federal area — deletion

  (2) If the Government of Canada ceases to be responsible for the Management — as defined in the Northwest Territories Lands and Resources Devolution Agreement that was made on June 25, 2013 — of a waste site, the federal Minister shall immediately notify the board in writing.

Gwich’in Land and Water Board

Marginal note:Board established

• 54 (1) There is hereby established, in respect of the settlement area referred to in the Gwich’in Agreement, a board to be known as the Gwich’in Land and Water Board.

• Marginal note:Membership

  (2) The Board shall consist of five members including, apart from the chairperson, two members appointed on the nomination of the Gwich’in First Nation and one member appointed on the nomination of the territorial Minister.

• Marginal note:Quorum

  (3) A quorum of the Board consists of three members, including one of the members appointed on the nomination of the Gwich’in First Nation and one of the members not so appointed other than the chairperson.

Marginal note:Main office

55 The main office of the Board shall be located in the settlement area referred to in the Gwich’in Agreement.

Sahtu Land and Water Board

Marginal note:Board established

• 56 (1) There is hereby established, in respect of the settlement area referred to in the Sahtu Agreement, a board to be known as the Sahtu Land and Water Board.

• Marginal note:Membership

  (2) The Board shall consist of five members including, apart from the chairperson, two members appointed on the nomination of the Sahtu First Nation and one member appointed on the nomination of the territorial Minister.

• Marginal note:Quorum

  (3) A quorum of the Board consists of three members, including one of the members appointed on the nomination of the Sahtu First Nation and one of the members not so appointed other than the chairperson.

Marginal note:Main office

57 The main office of the Board shall be located in the settlement area referred to in the Sahtu Agreement.

Wekeezhii Land and Water Board

Marginal note:Board established

• 57.1 (1) There is hereby established, in respect of Wekeezhii, a board to be known as the Wekeezhii Land and Water Board.

• Marginal note:Membership

  (2) The Board shall consist of five members including, apart from the chairperson, two members who, subject to any agreement between the Tlicho Government and an aboriginal people of Canada to whom section 35 of the Constitution Act, 1982 applies, other than the Tlicho First Nation, are appointed by the Tlicho Government and one member who is appointed on the nomination of the territorial Minister.

• Marginal note:Consultation

  (3) The federal Minister and the Tlicho Government shall consult each other before making their appointments.

• Marginal note:Quorum

  (4) A quorum of the Board consists of three members, or any larger number that is determined by the Board, including one of the members appointed by the Tlicho Government or in accordance with any agreement referred to in subsection (2) and one of the members appointed by the federal Minister, other than the chairperson.

Marginal note:Main office

57.2 The main office of the Board shall be located in Wekeezhii.

General Provisions

Marginal note:Acting after expiry of term

• 57.3 (1) If the chairperson of a board is of the opinion that it is necessary for a member of that board to continue to act after the expiry of the member’s term in order for the board to make a decision in relation to the issuance, amendment, renewal or cancellation of a permit or licence, as the case may be, the chairperson may request in writing that the federal Minister authorize the member to act in relation to that matter until a decision is made. For the purpose of the appointment of a replacement, the office of the member is deemed to be vacant as soon as their term expires.

• Marginal note:Request

  (2) The request shall be made at least two months before the day on which the member’s term expires.

• Marginal note:Deemed acceptance

  (3) If the federal Minister neither accepts nor rejects the request within two months after the day on which it is made, the request is deemed to be accepted.

Marginal note:Objectives — Gwich’in and Sahtu Land and Water Boards

58 The Gwich’in Land and Water Board and the Sahtu Land and Water Board shall regulate the use of land and waters and the deposit of waste so as to provide for the conservation, development and utilization of land and water resources in a manner that will provide the optimum benefit for residents of their respective management areas and of the Mackenzie Valley and for all Canadians.

Marginal note:Objectives — Wekeezhii Land and Water Board

58.1 The Wekeezhii Land and Water Board shall regulate the use of land and waters and the deposit of waste so as to provide for the conservation, development and utilization of land and water resources in a manner that will provide the optimum benefit generally for all Canadians and in particular for residents of its management area.

Marginal note:Jurisdiction — land

• 59 (1) A board has jurisdiction in respect of all uses of land in its management area for which a permit is required under this Part and may, in accordance with the regulations, issue, amend, renew, suspend and cancel permits and authorizations for the use of land, and approve the assignment of permits.

• Marginal note:Subsurface rights

  (2) For greater certainty, the jurisdiction of a board under subsection (1) includes a use of land that is required for the exercise of subsurface rights.

Marginal note:Jurisdiction — water and waste in federal area

• 60 (1) A board has jurisdiction in respect of all uses of waters and deposits of waste in a federal area in its management area for which a licence is required under this Part and may, in accordance with the regulations, issue, amend, renew and cancel licences and approve the assignment of licences.

• Marginal note:Jurisdiction — water and waste outside federal area

  (1.1) A board has jurisdiction in respect of all uses of waters and deposits of waste on lands outside a federal area in its management area for which a licence is required under any territorial law and may, in accordance with that law,

  • (a) issue, amend, renew, suspend and cancel licences and approve the assignment of licences;

  • (b) include in a licence any conditions it considers appropriate;

  • (c) determine the term of a licence;

  • (d) determine the appropriate compensation to be paid by an applicant for a licence, or by a licensee who applies for an amendment or renewal of their licence, to persons who would be adversely affected by the proposed use of waters or deposit of waste;

  • (e) require an applicant for a licence, a licensee or a prospective assignee of a licence to furnish and maintain security; and

  • (f) on the request of a person who is subject to an order made by an inspector, review that order and confirm, vary or revoke it.

• Marginal note:Suspension power

  (2) A board may suspend a licence in respect of a federal area for a specified period, or until terms and conditions specified by it are complied with, if the licensee contravenes a provision of this Part or a term or condition of the licence.

Marginal note:Considerations

60.1 In exercising its powers, a board shall consider

• (a) the importance of conservation to the well-being and way of life of the aboriginal peoples of Canada to whom section 35 of the Constitution Act, 1982 applies and who use an area of the Mackenzie Valley; and

• (b) any traditional knowledge and scientific information that is made available to it.

Marginal note:Conformity with land use plan — Gwich’in and Sahtu Boards

• 61 (1) The Gwich’in Land and Water Board and the Sahtu Land and Water Board may not issue, amend or renew a licence, permit or authorization except in accordance with an applicable land use plan under Part 2.

• Marginal note:Conformity with land use plan — Wekeezhii Board

  (2) The Wekeezhii Land and Water Board may not issue, amend or renew a licence, permit or authorization except in accordance with any land use plan, established under a federal, territorial or Tlicho law, that is applicable to any part of its management area.

Marginal note:Conformity with Tlicho laws — Wekeezhii Board

61.1 The Wekeezhii Land and Water Board may not exercise its discretionary powers relating to the use of Tlicho lands except in accordance with any Tlicho laws enacted under 7.4.2 of chapter 7 of the Tlicho Agreement.

Marginal note:Requirements of Part 5

62 A board may not issue a licence, permit or authorization for the carrying out of a proposed development within the meaning of Part 5 unless the requirements of that Part have been complied with, and every licence, permit or authorization so issued shall include any conditions that are required to be included in it pursuant to a decision made under that Part.

Marginal note:Copies of applications

• 63 (1) A board shall provide a copy of each application made to the board for a licence or permit to the owner of any land to which the application relates and to appropriate departments and agencies of the federal and territorial governments.

• Marginal note:Notice of applications

  (2) A board shall notify affected communities and first nations of an application made to the board for a licence, permit or authorization and allow a reasonable period of time for them to make representations to the board with respect to the application.

• Marginal note:Notice to Tlicho Government

  (3) The Wekeezhii Land and Water Board shall notify the Tlicho Government of an application made to the Board for a licence, permit or authorization and allow a reasonable period of time for it to make representations to the Board with respect to the application.

• Marginal note:Consultation with Tlicho Government

  (4) The Wekeezhii Land and Water Board shall consult the Tlicho Government before issuing, amending or renewing any licence, permit or authorization for a use of Tlicho lands or waters on those lands or a deposit of waste on those lands or in those waters.

• Marginal note:Consultation with Déline Got’ine Government

  (5) The Sahtu Land and Water Board shall consult the Déline Got’ine Government before issuing, amending or renewing any licence, permit or authorization for a use of Déline lands or waters on those lands or a deposit of waste on those lands or in those waters.

Marginal note:Heritage resources

• 64 (1) A board shall seek and consider the advice of any affected first nation and, in the case of the Wekeezhii Land and Water Board, the Tlicho Government and any appropriate department or agency of the federal or territorial government respecting the presence of heritage resources that might be affected by a use of land or waters or a deposit of waste proposed in an application for a licence or permit.

• Marginal note:Wildlife resources

  (2) A board shall seek and consider the advice of the renewable resources board established by the land claim agreement applicable in its management area respecting the presence of wildlife and wildlife habitat that might be affected by a use of land or waters or a deposit of waste proposed in an application for a licence or permit.

Marginal note:Guidelines and policies — permits

• 65 (1) Subject to the regulations, a board may establish guidelines and policies respecting permits and other authorizations, including their issuance under this Part.

• Marginal note:Guidelines and policies — licences

  (2) Subject to the regulations and any territorial law, a board may establish guidelines and policies respecting licences, including their issuance under this Part.

Marginal note:Copies of licences and permits

66 A board shall provide the federal Minister with copies of licences, permits and authorizations issued under this Part and of decisions and orders relating to them.

Marginal note:Final decision

67 Subject to sections 32 and 72.13, subsections 125(1.2) and (4) and any approval requirement under any territorial law with respect to the issuance, renewal, amendment or cancellation of a licence, every decision or order of a board is final and binding.

Marginal note:Public register

• 68 (1) A board shall maintain at its main office, in any form that is prescribed by the regulations, a register convenient for use by the public in which shall be entered, for each application received and each licence or permit issued, the information prescribed by the regulations.

• Marginal note:Register to be open to inspection

  (2) The register shall be open to inspection by any person during the board’s normal business hours, subject to the payment of any fee prescribed by the regulations.

• Marginal note:Copies of contents of register

  (3) A board shall, on request and on payment of any fee prescribed by the regulations, make available copies of information contained in the register.

Special Rules for Land Use

Marginal note:Protection of the environment

69 Before issuing a permit for a use of land, a board shall, with respect to conditions of the permit for the protection of the environment, consult

• (a) the territorial Minister, in the case of land of which the Commissioner of the Northwest Territories has administration and control;

• (b) the minister of the Government of Canada having administration and control of the land in the case of any land under that minister’s administration and control; or

• (c) the owner of the land, in any other case.

Marginal note:Delegation to staff

70 A board may, by instrument of delegation, specify permits from among a class prescribed by the regulations that an employee of the Board named in the instrument may issue, amend or renew and whose assignment the employee may approve.

Marginal note:Posting security

• 71 (1) A board may require, as a condition of a permit or as a condition of the assignment of a permit, the posting of security with the federal Minister in a form prescribed by the regulations or a form satisfactory to the federal Minister and in an amount specified in, or determined in accordance with, the regulations.

• Marginal note:Notice

  (2) The federal Minister shall notify a board of the posting of security so required.

• Marginal note:Application of security

  (3) Where damage to lands results from a permittee’s contravention of any provision of the regulations or a permit, the board may request of the federal Minister that all or part of the security posted by the permittee be applied toward the costs incurred in repairing the damage.

• Marginal note:Liability not limited

  (4) This section does not affect the liability of a permittee for any damages to land in excess of the amount of the posted security.

• Marginal note:Refund of security

  (5) The federal Minister shall, in accordance with the regulations, refund any part of the security posted by the permittee that is not applied pursuant to this Part.

Special Rules for the Use of Waters and the Deposit of Waste

Prohibitions

Marginal note:Use of waters

• 72 (1) Except as authorized under the Dominion Water Power Act, and subject to subsection (2), no person shall use, or permit the use of, waters in a federal area within a water management area except

  • (a) in accordance with the conditions of a licence; or

  • (b) as authorized by regulations made under paragraph 90.3(1)(m).

• Marginal note:Exemptions from application of subsection (1)

  (2) Subsection (1) does not apply in respect of the use of waters

  • (a) by a domestic user;

  • (b) by an instream user; or

  • (c) for the purpose of extinguishing a fire or, in an emergency, controlling or preventing a flood.

• Marginal note:Duties in certain cases

  (3) If any person diverts waters for a purpose set out in paragraph (2)(c), the person shall, when the need for the diversion has ceased, discontinue the diversion and, in so far as possible, restore the original channel conditions.

Marginal note:Deposit of waste

• 72.01 (1) Except in accordance with the conditions of a licence or as authorized by regulations made under paragraph 90.3(1)(n), no person shall, subject to subsection (2), deposit or permit the deposit of waste in a federal area

  • (a) in any waters in a water management area; or

  • (b) in any other place under conditions in which the waste, or any other waste that results from the deposit of that waste, may enter any waters in a water management area.

• Marginal note:Exception

  (2) Subsection (1) does not apply to the deposit of waste in waters that form part of a water quality management area designated under the Canada Water Act if the waste so deposited is of a type and quantity, and deposited under conditions, prescribed by regulations made by the Governor in Council under paragraph 18(2)(a) of that Act with respect to that water quality management area.

• Marginal note:Duty to report unlawful deposits of waste

  (3) If waste is deposited in contravention of this section, every person who owns the waste or has the charge, management or control of it — or who caused or contributed to the deposit — shall, without delay, in accordance with the regulations, if any, made under paragraph 90.3(1)(o), report the deposit to the person or authority designated under that paragraph or, if no such person or authority has been designated, to an inspector designated under subsection 84(1).

Marginal note:Exemption — Tlicho communities

72.02 Sections 72 and 72.01 do not apply in respect of a use of waters or a deposit of waste in a Tlicho community if the local government of that community has enacted a bylaw providing that a licence is not required for that type of use or deposit.

Licences

Marginal note:Issuance

• 72.03 (1) Subject to this section, a board may issue, in accordance with the criteria set out in the regulations made under paragraph 90.3(1)(c), type A licences and type B licences permitting the applicant for the licence, on payment of the fees prescribed by regulations made under paragraph 90.3(1)(k), at the times and in the manner prescribed by any applicable regulations made under paragraph 90.3(1)(l) or, in the absence of such regulations, at the times and in the manner set out in the licence, to use waters or deposit waste, or both, in a federal area in connection with the operation of an appurtenant undertaking and in accordance with the conditions specified in the licence.

• Marginal note:Term

  (2) A licence issued under subsection (1) may be issued for a term

  • (a) of not more than 25 years, in the case of a type A licence that is in respect of a class of undertakings prescribed by the regulations or a type B licence; or

  • (b) of not more than the anticipated duration of the appurtenant undertaking, in the case of a type A licence other than one described in paragraph (a).

• Marginal note:Specific uses

  (3) The board shall not issue a licence in respect of a use of waters referred to in subsection 72(2).

• Marginal note:Refusal to issue

  (4) The board shall not refuse to issue a licence merely because the use of waters or deposit of waste in respect of which the application for the licence is made is already authorized by regulations made under paragraph 90.3(1)(m) or (n).

• Marginal note:Conditions for issue

  (5) The board shall not issue a licence in respect of a federal area unless the applicant satisfies the board that

  • (a) either

    • (i) the use of waters or the deposit of waste proposed by the applicant would not adversely affect, in a significant way, the use of waters, whether in or outside the federal area to which the application relates,

      • (A) by any existing licensee who holds a licence issued under this Act or any other licence relating to the use of waters or deposit of waste, or both, issued under any territorial law or the Nunavut Waters and Nunavut Surface Rights Tribunal Act, or

      • (B) by any other applicant whose proposed use of waters would take precedence over the applicant’s proposed use by virtue of section 72.26 or any territorial law, or

    • (ii) every licensee and applicant to whom subparagraph (i) applies has entered into a compensation agreement with the applicant;

  • (b) compensation that the board considers appropriate has been or will be paid by the applicant to any other applicant who is described in clause (a)(i)(B) but to whom paragraph (a) does not apply, and to any of the following who were licensees, users, depositors, owners, occupiers or holders, whether in or outside the federal area to which the application relates, at the time when the applicant filed an application with the board in accordance with the regulations made under paragraphs 90.3(1)(d) and (e), who would be adversely affected by the use of waters or the deposit of waste proposed by the applicant, and who have notified the board within the time period stipulated in the notice of the application given under subsection 72.16(1):

    • (i) licensees who hold a licence issued under this Act or any other licence relating to the use of waters or deposit of waste, or both, issued under any territorial law or the Nunavut Waters and Nunavut Surface Rights Tribunal Act and to whom paragraph (a) does not apply,

    • (ii) domestic users,

    • (iii) instream users,

    • (iv) authorized users,

    • (v) authorized waste depositors,

    • (vi) persons who use waters or deposit waste, or both, without a licence under the authority of any territorial law,

    • (vii) persons referred to in paragraph 61(d) of the Nunavut Waters and Nunavut Surface Rights Tribunal Act,

    • (viii) owners of property,

    • (ix) occupiers of property, and

    • (x) holders of outfitting concessions, registered trapline holders, and holders of other rights of a similar nature;

  • (c) any waste that would be produced by the appurtenant undertaking will be treated and disposed of in a manner that is appropriate for the maintenance of

    • (i) water quality standards prescribed by regulations made under paragraph 90.3(1)(h) or, in the absence of such regulations, any water quality standards that the board considers acceptable, and

    • (ii) effluent standards prescribed by regulations made under paragraph 90.3(1)(i) or, in the absence of such regulations, any effluent standards that the board considers acceptable; and

  • (d) the financial responsibility of the applicant, taking into account the applicant’s past performance, is adequate for

    • (i) the completion of the appurtenant undertaking,

    • (ii) any mitigative measures that may be required, and

    • (iii) the satisfactory maintenance and restoration of the site in the event of any future closing or abandonment of that undertaking.

• Marginal note:Factors in determining compensation

  (6) In determining the compensation that is appropriate for the purpose of paragraph (5)(b), the board shall consider all relevant factors, including

  • (a) provable loss or damage;

  • (b) potential loss or damage;

  • (c) the extent and duration of the adverse effect, including the incremental adverse effect;

  • (d) the extent of the use of waters by persons who would be adversely affected; and

  • (e) nuisance, inconvenience and noise.

Marginal note:Conditions

• 72.04 (1) Subject to this Act and its regulations, a board may include in a licence in respect of a federal area any conditions that it considers appropriate, including conditions

  • (a) relating to the manner of use of waters permitted to be used under the licence;

  • (b) relating to the quantity, concentration and types of waste that may be deposited in any waters by the licensee;

  • (c) under which any such waste may be so deposited;

  • (d) relating to studies to be undertaken, works to be constructed, plans to be submitted, and monitoring programs to be undertaken; and

  • (e) relating to any future closing or abandonment of the appurtenant undertaking.

• Marginal note:Board to minimize adverse effects

  (2) In fixing the conditions of a licence in respect of a federal area, the board shall make all reasonable efforts to minimize any adverse effects of the issuance of the licence on any of the following who would be adversely affected by the use of waters or the deposit of waste proposed by the applicant, and who have notified the board within the time period stipulated in the notice of the application given under subsection 72.16(1), whether they are in or outside the federal area to which the application relates, at the time when the board is considering the fixing of those conditions:

  • (a) licensees who hold a licence in respect of a federal area or in respect of lands outside a federal area;

  • (b) domestic users;

  • (c) instream users;

  • (d) authorized users;

  • (e) authorized waste depositors;

  • (f) persons who use waters or deposit waste, or both, without a licence under the authority of any territorial law;

  • (g) owners of property;

  • (h) occupiers of property; and

  • (i) holders of outfitting concessions, registered trapline holders, and holders of other rights of a similar nature.

• Marginal note:Conditions relating to waste

  (3) If a board issues a licence in respect of a federal area whose waters form part of a water quality management area designated under the Canada Water Act, it is not permitted to include in the licence any conditions relating to the deposit of waste in those waters that are less stringent than the provisions of the regulations made under paragraph 18(2)(a) of that Act with respect to those waters.

• Marginal note:Non-application of regulations under Canada Water Act

  (4) If a board issues a licence in respect of a federal area whose waters do not form part of a water quality management area designated under the Canada Water Act,

  • (a) if any regulations made under paragraph 90.3(1)(h) are in force for those waters, the board is not permitted to include in the licence any conditions relating to the deposit of waste in those waters that are not based on the water quality standards prescribed for those waters by those regulations; and

  • (b) if any regulations made under paragraph 90.3(1)(i) are in force for those waters, the board is not permitted to include in the licence any conditions relating to the deposit of waste in those waters that are less stringent than the effluent standards prescribed in relation to those waters by those regulations.

• Marginal note:Application of Fisheries Act

  (5) If a board issues a licence in respect of a federal area whose waters do not form part of a water quality management area designated under the Canada Water Act, and to which any regulations made under subsection 36(5) of the Fisheries Act apply, it is not permitted to include in the licence any conditions relating to the deposit of waste in those waters that are less stringent than the provisions of those regulations that relate to the deposit of deleterious substances as defined in subsection 34(1) of that Act.

• Marginal note:Conditions relating to works

  (6) The board shall include in a licence in respect of a federal area conditions that are at least as stringent as any applicable standards prescribed by any regulations made under paragraph 90.3(1)(j).

• Marginal note:Licence conditions deemed amended

  (7) If regulations referred to in subsection (3), (4), (5) or (6) are made or amended after the issuance of a licence in respect of a federal area, the conditions of the licence are deemed to be amended to the extent, if any, that is necessary to comply, or remain in compliance, with that subsection.

Marginal note:Inuit-owned land

• 72.05 (1) A board shall not issue a licence in respect of a use of waters or a deposit of waste in a federal area that may substantially alter the quality, quantity or flow of waters flowing through Inuit-owned land, unless

  • (a) the applicant has entered into an agreement with the designated Inuit organization to pay compensation for any loss or damage that may be caused by the alteration; or

  • (b) if there is no agreement,

    • (i) on the request of the applicant or the designated Inuit organization, the board has made a joint determination of the appropriate compensation with the Nunavut Water Board, or

    • (ii) if the board and the Nunavut Water Board are unable to jointly determine compensation, a judge of the Nunavut Court of Justice has determined the compensation.

• Marginal note:Payment of compensation

  (2) The payment of compensation referred to in paragraph (1)(b) shall be a condition of the licence.

• Marginal note:Costs

  (3) Unless otherwise determined by the Nunavut Water Board, costs incurred by the designated Inuit organization as a result of a request referred to in subparagraph (1)(b)(i) shall be paid by the applicant.

Marginal note:Negotiation to be in good faith

72.06 A board shall not consider a request referred to in subparagraph 72.05(1)(b)(i) unless the requester has negotiated in good faith and has been unable to reach an agreement.

Marginal note:Factors in determining compensation

72.07 For the purpose of determining compensation under paragraph 72.05(1)(b), the following factors shall be taken into account:

• (a) the adverse effects of the alteration of the quality, quantity or flow of waters on Inuit-owned land;

• (b) the nuisance, inconvenience or disturbance, including noise, caused by the alteration;

• (c) the cumulative adverse effects of the alteration and of any existing uses of waters and deposits of waste;

• (d) the cultural attachment of Inuit to the affected Inuit-owned land, including waters;

• (e) the peculiar and special value of the affected Inuit-owned land, including waters; and

• (f) any interference with Inuit rights derived from the Agreement or otherwise.

Marginal note:Periodic review and payment

72.08 Unless otherwise agreed by the designated Inuit organization and the applicant, a determination of compensation made under paragraph 72.05(1)(b) shall provide, having due regard to the nature and duration of the use of waters or deposit of waste, for the periodic review and periodic payment of that compensation.

Marginal note:Interpretation

• 72.09 (1) In this section and sections 72.05 to 72.08,

  • (a) Agreement, Inuit, Inuit-owned land, Makivik and Tunngavik have the same meanings as in subsection 2(1) of the Nunavut Waters and Nunavut Surface Rights Tribunal Act; and

  • (b) designated Inuit organization means

    • (i) except in the case of the jointly owned lands referred to in section 40.2.8 of the Agreement,

      • (A) Tunngavik, or

      • (B) any organization designated in the public record maintained by Tunngavik under the Agreement as being responsible for the functions described under sections 20.3.1 and 20.4.1 of the Agreement, or

    • (ii) in the case of the jointly owned lands referred to in section 40.2.8 of the Agreement, Makivik, acting jointly with the organization determined under subparagraph (i).

• Marginal note:Interpretation

  (2) For greater certainty, sections 72.05 to 72.08 apply in respect of a body of water that delineates a boundary between Inuit-owned land and other land and that body of water is not located entirely on Inuit-owned land.

Marginal note:Application for licence

• 72.1 (1) An application for a licence shall be in the form and contain the information,

  • (a) if the licence is to apply with respect to a federal area, prescribed by the regulations; and

  • (b) if the licence is to apply with respect to lands outside a federal area, required under any territorial law.

• Marginal note:Information and studies

  (2) The board shall require an applicant for a licence to provide the board with the information and studies concerning the use of waters or deposit of waste proposed by the applicant that will enable the board to evaluate any qualitative and quantitative effects of the use or deposit on waters.

Marginal note:Security — federal area

• 72.11 (1) A board may require an applicant for a licence that is to apply with respect to a federal area, a holder of such a licence or a prospective assignee of such a licence to furnish and maintain security with the federal Minister, in an amount specified in, or determined in accordance with, the regulations made under paragraph 90.3(1)(g) and in a form prescribed by those regulations or a form satisfactory to the federal Minister.

• Marginal note:How security may be applied

  (2) The security may be applied by the federal Minister in the following manner:

  • (a) if the federal Minister is satisfied that a person who is entitled to be compensated by a licensee under section 72.27 has taken all reasonable measures to recover compensation from the licensee and has been unsuccessful in that recovery, the security may be applied to compensate that person, either fully or partially; and

  • (b) the security may be applied to reimburse Her Majesty in right of Canada, either fully or partially, for reasonable costs incurred by Her Majesty under subsection 86.2(1) or, subject to subsection (3), subsection 89(1).

• Marginal note:Exception

  (3) Paragraph (2)(b) applies in respect of costs incurred under subsection 89(1) only to the extent that the incurring of those costs was based on subparagraph 89(1)(b)(i).

• Marginal note:Limitation

  (4) The amount of security that the federal Minister may apply under subsection (2) in respect of any particular incident or matter may not exceed in the aggregate the amount of the security referred to in subsection (1).

• Marginal note:Refund of security

  (5) Any portion of the security that, in the federal Minister’s opinion, will not be required under subsection (2) shall be refunded without delay to the licensee or assignor, as the case may be, if the federal Minister is satisfied that

  • (a) the appurtenant undertaking has been permanently closed or permanently abandoned; or

  • (b) the licence has been assigned.

Marginal note:Renewal, amendment and cancellation

• 72.12 (1) Subject to subsections (2) and (3), a board may, in respect of a federal area,

  • (a) renew a licence, if the licensee applies for its renewal or if the renewal appears to the board to be in the public interest, with or without changes to its conditions, for a term

    • (i) of not more than 25 years, in the case of a type A licence that is in respect of a class of undertakings prescribed by the regulations or a type B licence, or

    • (ii) of not more than the anticipated duration of the appurtenant undertaking, in the case of a type A licence other than one described in subparagraph (i);

  • (b) amend, for a specified term or otherwise, any condition of a licence

    • (i) if the licensee applies for its amendment,

    • (ii) if the amendment is required to deal with a water shortage in any water management area, or

    • (iii) in any other case, if the amendment appears to the board to be in the public interest; and

  • (c) cancel a licence

    • (i) if the licensee applies for its cancellation,

    • (ii) if the licensee, for three successive years, fails to exercise their rights under the licence, or

    • (iii) in any other case, if the cancellation appears to the board to be in the public interest.

• Marginal note:Application of certain provisions

  (2) Sections 72.03 to 72.11 apply, with any modifications that the circumstances require, in respect of a renewal of, or an amendment to, a licence.

• Marginal note:Application to cancel licence

  (3) An application to cancel a licence shall be in the form and contain the information that is,

  • (a) if the licence applies with respect to a federal area, prescribed by the regulations; and

  • (b) if the licence applies with respect to lands outside a federal area, required under any territorial law.

Marginal note:Approval to issue, renew, amend or cancel

72.13 A board may issue, renew, amend or cancel — in respect of a federal area or lands outside a federal area — a type A licence, or a type B licence in connection with which a public hearing is held by the board with respect to its issuance, renewal, amendment or cancellation, only with the approval of the federal Minister.

Marginal note:Assignment

• 72.14 (1) Any sale or other disposition of any right, title or interest, of a licensee who holds a licence in respect of a federal area, in an appurtenant undertaking constitutes, without further action by the licensee, an assignment of the licence to the person or persons to whom the sale or other disposition is made if the assignment of the licence was authorized by a board.

• Marginal note:Authorization of assignment

  (2) A board shall authorize the assignment of a licence if it is satisfied that neither the sale or other disposition of any right, title or interest of the licensee in the appurtenant undertaking at the time, in the manner and on the terms and conditions agreed to by the licensee, nor the operation of the appurtenant undertaking by the prospective assignee would be likely to result in a contravention of, or failure to comply with, any condition of the licence or any provision of this Act or the regulations.

• Marginal note:Licence not otherwise assignable

  (3) Except as provided in this section, a licence in respect of a federal area is not assignable.

Public Hearings and Procedure

Marginal note:Optional hearing

• 72.15 (1) If a board is satisfied that it would be in the public interest, it may hold a public hearing in connection with any matter relating to its objects, including, in respect of a federal area or lands outside a federal area,

  • (a) the issuance or renewal of, or an amendment to, a type B licence;

  • (b) an amendment to a type A licence under which neither the use, flow or quality of waters nor the term of the licence would be altered; and

  • (c) the cancellation of a type B licence under subparagraph 72.12(1)(c)(i).

• Marginal note:Mandatory hearing

  (2) Subject to subsection (3), the board shall hold a public hearing if it is considering, in respect of a federal area,

  • (a) the issuance or renewal of a type A licence;

  • (b) an amendment to a type A licence under which the use, flow or quality of waters, or the term of the licence, would be altered;

  • (c) the cancellation of a type A licence under paragraph 72.12(1)(c); or

  • (d) the cancellation of a type B licence under subparagraph 72.12(1)(c)(ii) or (iii).

• Marginal note:Exception

  (3) Subsection (2) does not apply

  • (a) if, after giving notice of a public hearing under section 72.16, the board receives no notification on or before the 10th day before the day of the proposed hearing that any person or body intends to appear and make representations and the applicant or the licensee, as the case may be, consents in writing to the disposition of the matter without a public hearing;

  • (b) if, in the case of a renewal of a type A licence, the licensee has filed with the board an application for renewal in accordance with the regulations made under paragraphs 90.3(1)(d) and (e) and the term of the renewal or renewals granted by the board does not exceed 60 days in the aggregate; or

  • (c) if, in the case of an amendment to a type A licence under which the use, flow or quality of waters would be altered, the board, with the consent of the federal Minister, declares the amendment to be required on an emergency basis.

Marginal note:Notice of applications

• 72.16 (1) Subject to subsection (4), a board shall give notice of each application made to it — in respect of a federal area or lands outside a federal area — by publishing the application in a newspaper of general circulation in the area affected or, if there is no such newspaper, in any other manner that the board considers appropriate.

• Marginal note:Notice of public hearing

  (2) Subject to subsection (4), a board shall give notice of a public hearing to be held by it by publishing a notice in a newspaper of general circulation in the area affected or, if there is no such newspaper, in any other manner that the board considers appropriate. The day fixed for the public hearing shall be at least 35 days after the day on which the requirements of this subsection have been met.

• Marginal note:Public hearing not held

  (3) Subject to subsection (4), if a public hearing is not held by a board in connection with an application, the board may not act on the application until at least 10 days after the requirements of subsection (1) have been met.

• Marginal note:Exception

  (4) Subsections (1) to (3) do not apply in respect of an application for the amendment of a licence if a board, with the consent of the federal Minister in respect of a federal area or in accordance with any territorial law in respect of lands outside a federal area, declares the amendment to be required on an emergency basis.

Marginal note:Notice — federal area

• 72.17 (1) A board shall give notice of its intention to consider, on its own initiative, the renewal of a licence under paragraph 72.12(1)(a), or the amendment of a condition of a licence under subparagraph 72.12(1)(b)(ii) or (iii), by publishing a notice in a newspaper of general circulation in the area affected or, if there is no such newspaper, in any other manner that the board considers appropriate.

• Marginal note:Notice — lands outside a federal area

  (2) A board shall give notice of its intention to consider, on its own initiative, the renewal, or the amendment of a condition, of a licence in respect of lands outside a federal area in accordance with any territorial law by publishing a notice in a newspaper of general circulation in the area affected or, if there is no such newspaper, in any other manner that the board considers appropriate.

• Marginal note:Exception

  (3) Subsections (1) and (2) do not apply in respect of an application for the amendment of a licence if a board, with the consent of the federal Minister in respect of a federal area or in accordance with any territorial law in respect of lands outside a federal area, declares the amendment to be required on an emergency basis.

Marginal note:Time limit — type A licence and type B licence

• 72.18 (1) With respect to a federal area or lands outside a federal area, on an application for the issuance, renewal or amendment of a type A licence, or a type B licence in connection with which a public hearing is held, or if the board intends to consider, on its own initiative, the renewal or amendment of such a licence, the board shall make a decision within a period of nine months after the day on which the application is made or on which notice of the board’s intention is published under subsection 72.17(1) or (2).

• Marginal note:Referral to Minister for approval

  (2) If the board decides to issue, renew or amend the licence, that decision shall be immediately referred to the federal Minister for approval.

• Marginal note:Decision of Minister and reasons

  (3) The federal Minister shall, within 45 days after the board’s decision is referred to him or her, notify the board whether or not the decision is approved and, if it is not approved, provide written reasons in the notification.

• Marginal note:Extension of time limit

  (4) The federal Minister may extend the 45-day time limit by not more than an additional 45 days if he or she notifies the board of the extension within the first 45 days.

• Marginal note:Absence of decision

  (5) If the federal Minister does not notify the board whether or not the decision is approved within the time limit referred to in subsection (3) or (4), whichever is applicable, the federal Minister is deemed to have given approval.

Marginal note:Time limit — other type B licences

72.19 With respect to a federal area or lands outside a federal area, on an application for the issuance, renewal or amendment of a type B licence in connection with which no public hearing is held or if the board intends to consider, on its own initiative, the renewal or amendment of such a licence, the board shall make a decision within a period of nine months after the day on which the application is made or on which notice of the board’s intention is published under subsection 72.17(1) or (2).

Marginal note:Time limit — other licences

72.2 On an application for the issuance, renewal or amendment of a licence in respect of lands outside a federal area — other than a type A or type B licence — or, if the board intends to consider, on its own initiative, the renewal or amendment of such a licence, the board shall make a decision within a period of nine months after the day on which the application is made or on which notice of the board’s intention is published under subsection 72.17(2).

Marginal note:Day on which application is made

72.21 An application for the issuance, renewal or amendment of a licence is considered to be made on the day on which the board is satisfied that the application is in the form, and contains all of the information,

• (a) if the licence applies with respect to a federal area, prescribed by the regulations; and

• (b) if the licence applies with respect to lands outside a federal area, required under any territorial law.

Marginal note:Excluded period — information or studies

• 72.22 (1) If the board requires the applicant or the licensee to provide information or studies, then the period that is taken by that applicant or licensee, in the board’s opinion, to comply with the requirement is not included in the calculation of the time limit under subsection 72.18(1), section 72.19 or 72.2 or of its extension.

• Marginal note:Excluded period — environmental assessment, etc.

  (2) If the proposed use of waters or deposit of waste to which the application or the licence relates is part of a proposed development in respect of which an environmental assessment, an environmental impact review or an examination of impacts on the environment that stands in lieu of an environmental impact review is conducted under Part 5, then the period that is taken to complete that assessment, review or examination is not included in the calculation of the time limit under subsection 72.18(1), section 72.19 or 72.2 or of its extension.

Marginal note:Suspension of time limit

72.23 A board may suspend a time limit referred to in subsection 72.18(1) or section 72.19 or 72.2 or its extension

• (a) if the board determines that the applicant is required to pay compensation, or to enter into a compensation agreement, under subsection 72.03(5), until the applicant satisfies the board that the compensation has been or will be paid or that they have entered into a compensation agreement, as the case may be;

• (b) if the board is not permitted to issue a licence except in accordance with subsection 72.05(1), until the applicant has entered into a compensation agreement under paragraph 72.05(1)(a) or until a determination of compensation has been made under paragraph 72.05(1)(b), as the case may be;

• (c) if the board is not permitted to issue a licence with respect to lands outside a federal area except in accordance with any compensation requirement under any territorial law, until the requirement has been fulfilled; or

• (d) if the board determines that the applicant is required to enter into a compensation agreement under section 77 or 79.1, until the applicant satisfies the board that they have done so or the board has determined, under section 79 or 79.3, the compensation payable by the applicant.

Marginal note:Extension of time limit by federal Minister

• 72.24 (1) The federal Minister may, at the request of the board, extend the time limit referred to in subsection 72.18(1), section 72.19 or 72.2 by a maximum of two months to take into account circumstances that are specific to the issuance, renewal or amendment of the licence.

• Marginal note:Extension of time limit by Governor in Council

  (2) The Governor in Council may, on the recommendation of the federal Minister, further extend the time limit extended under subsection (1) any number of times.

Marginal note:Reasons — decisions and orders

72.25 A board shall issue, and make available to the public, written reasons for its decisions or orders relating to any licence, or any application for a licence, in respect of a federal area or lands outside a federal area.

Rights and Duties of Licensees and Others With Authorizations to Use Waters

Marginal note:Precedence

• 72.26 (1) If more than one person has a licence, or other authorization to use waters issued by any authority responsible for the management of waters in the Northwest Territories or in Nunavut, in respect of a federal area, the person who first applied is entitled to the use of the waters in accordance with that person’s licence or authorization in precedence over the other persons.

• Marginal note:Amendments to a licence or authorization

  (2) Subsection (1) applies, with any modifications that the circumstances require, in respect of any rights a person acquires through an amendment to that person’s licence or authorization.

• Marginal note:Renewal or assignment of a licence or authorization

  (3) Subject to subsection (2), a licence or authorization that has been renewed or assigned shall, for the purposes of this section, be deemed to be a continuation of the original licence or authorization.

Marginal note:Right to sue for compensation

• 72.27 (1) Except as otherwise provided by a compensation agreement referred to in subparagraph 72.03(5)(a)(ii), a person who is adversely affected as a result of the issuance of a licence in respect of a federal area or a use of waters or deposit of waste authorized by regulations made under paragraph 90.3(1)(m) or (n) is entitled to be compensated by the licensee, authorized user or authorized waste depositor in respect of that adverse effect, and may sue for and recover any such compensation in any court of competent jurisdiction.

• Marginal note:Rights protected

  (2) A person is not barred from exercising any rights conferred by subsection (1) merely because of having been paid the compensation referred to in subsection 72.03(5), or because of having been paid compensation under paragraph 72.11(2)(a) or under a compensation agreement referred to in subparagraph 72.03(5)(a)(ii).

Marginal note:Copies of licences

72.28 A board shall provide the territorial Minister with copies of licences issued under this Part and of any decisions and orders relating to such licences.

Aboriginal Water Rights

Marginal note:Use without licence

• 73 (1) Despite sections 72 and 72.01 or any territorial law, the Gwich’in and Sahtu First Nations have the right to use waters or to deposit waste without a licence for purposes of trapping and non-commercial wildlife harvesting other than trapping, for purposes of transportation related to those activities and for traditional heritage, cultural and spiritual purposes.

• Marginal note:Use without licence — Tlicho citizens

  (2) Despite sections 72 and 72.01 or any territorial law — and subject to any applicable Tlicho laws and, in relation to waters that are on settlement lands, any limitations under the applicable land claim agreement that are of the same type as those that apply in relation to waters on Tlicho lands — Tlicho citizens have the right to use water in the part of Monfwi Gogha De Niitlee that is in the Northwest Territories without a licence, for purposes of wildlife harvesting under 10.1.1 of chapter 10 of the Tlicho Agreement, for purposes of transportation related to such wildlife harvesting and for heritage, cultural or spiritual purposes of the Tlicho First Nation.

Marginal note:Exclusive right

74 Despite section 7.1, the Gwich’in and Sahtu First Nations have the exclusive right to the use of waters when on or flowing through their first nation lands and to the deposit of waste in relation to those waters in accordance with the other provisions of this Part or any territorial law, as the case may be.

Marginal note:Right to unaltered waters

75 Subject to sections 76 to 78, the Gwich’in First Nation and the Sahtu First Nation have, in relation to waters when on or flowing through their first nation lands or waters adjacent to their first nation lands, the right to have the quality, quantity and rate of flow remain substantially unaltered by any person.

Marginal note:Issuance, amendment or renewal of licences, etc.

76 The Gwich’in Land and Water Board or the Sahtu Land and Water Board may issue, amend or renew a licence, permit or authorization where the use of land or waters or the deposit of waste proposed by the applicant would, in the opinion of the board, interfere with a first nation’s rights under section 75, if the board is satisfied that

• (a) there is no alternative that could reasonably satisfy the requirements of the applicant;

• (b) there are no reasonable measures by which the applicant could avoid the interference; and

• (c) in the case of a licence, the requirements of section 77 are satisfied.

Compensation — Gwich’in and Sahtu First Nations

Marginal note:Conditions for licence

77 The Gwich’in Land and Water Board or the Sahtu Land and Water Board may not issue, amend or renew a licence pursuant to section 76 unless

• (a) the applicant and the first nation enter into an agreement to compensate the first nation for any loss or damage resulting from any substantial alteration to the quality, quantity or rate of flow of waters when on or flowing through its first nation lands, or waters adjacent to its first nation lands; or

• (b) the applicant or the first nation applies to the board for a determination pursuant to subsection 79(1).

Marginal note:Application to water authority

• 78 (1) If the Gwich’in Land and Water Board or the Sahtu Land and Water Board determines that a use of waters or a deposit of waste that is proposed, in an application made to a water authority, to be carried out in

  • (a) an area of the Northwest Territories or Nunavut outside the board’s management area, or

  • (b) a park to which the Canada National Parks Act applies, or lands acquired pursuant to the Historic Sites and Monuments Act, in the board’s management area

  would be likely to substantially alter the quality, quantity or rate of flow of waters when on or flowing through first nation lands of the Gwich’in or Sahtu First Nation or waters adjacent to those first nation lands, the board shall notify the water authority in writing of its determination.

• Marginal note:Access to information

  (2) A water authority shall provide a board with such information in its possession as the board requires in order to make a determination under subsection (1).

• Marginal note:Conditions for authorization

  (3) Notwithstanding any other Act, a water authority that is notified by a board under subsection (1) may not authorize the proposed use of waters or deposit of waste unless

  • (a) the applicant and the first nation have entered into an agreement to compensate the first nation for any loss or damage resulting from the alteration; or

  • (b) the applicant or the first nation applies to the board for a determination pursuant to subsection 79(1).

Marginal note:Referral of compensation to board

• 79 (1) If a compensation agreement referred to in section 77 or 78 is not entered into within the period allowed by the rules of the Gwich’in Land and Water Board or the Sahtu Land and Water Board, as the case may be, the applicant or the first nation may apply to the board for a determination of compensation.

• Marginal note:Determination of compensation

  (2) On an application pursuant to subsection (1), the board shall determine the compensation payable in respect of the proposed use of waters or deposit of waste, taking into consideration

  • (a) the effect of the proposed use or deposit on

    • (i) the first nation’s use of waters when on or flowing through its first nation lands or waters adjacent to its first nation lands, and

    • (ii) its first nation lands, taking into account any cultural or special value of those lands to the first nation;

  • (b) the nuisance or inconvenience to the first nation, including noise, that may result on first nation lands;

  • (c) the effect on wildlife harvesting carried on by the first nation; and

  • (d) any other factor that the board considers relevant in the circumstances.

Compensation — Tlicho First Nation

Marginal note:Conditions for licence

79.1 The Wekeezhii Land and Water Board may not issue, amend or renew a licence for the use of waters or the deposit of waste if, in its opinion, that use or deposit is likely to substantially alter the quality, quantity or rate of flow of waters when on or flowing through Tlicho lands or waters adjacent to Tlicho lands unless

• (a) the Board is satisfied that there is no alternative that could reasonably satisfy the requirements of the applicant and that there are no reasonable measures by which the applicant could avoid the alteration; and

• (b) the applicant has entered into an agreement with the Tlicho Government to compensate the Tlicho First Nation for any loss or damage that may be caused by the alteration, or the applicant or the Tlicho Government has applied to the Board under subsection 79.3(1) for a determination of compensation for that loss or damage.

Marginal note:Application to water authority

• 79.2 (1) If the Wekeezhii Land and Water Board determines that a use of waters or a deposit of waste that is proposed, in an application made to a water authority, to be carried out in

  • (a) Nunavut or an area of the Northwest Territories outside Wekeezhii, or

  • (b) a park to which the Canada National Parks Act applies, or lands acquired pursuant to the Historic Sites and Monuments Act, in Wekeezhii

  would be likely to substantially alter the quality, quantity or rate of flow of waters when on or flowing through Tlicho lands or waters adjacent to Tlicho lands, the Board shall notify the water authority in writing of its determination.

• Marginal note:Access to information

  (2) A water authority shall provide the Board with any information in its possession that the Board requires in order to make a determination under subsection (1).

• Marginal note:Conditions for authorization

  (3) Despite any other Act, a water authority that is notified by the Board under subsection (1) may not authorize the proposed use of waters or deposit of waste unless

  • (a) the applicant and the Tlicho Government have entered into an agreement to compensate the Tlicho First Nation for any loss or damage that may be caused by the alteration; or

  • (b) the applicant or the Tlicho Government applies to the Board under subsection 79.3(1) for a determination.

Marginal note:Referral of compensation to Wekeezhii Board

• 79.3 (1) If a compensation agreement referred to in paragraph 79.1(b) or 79.2(3)(a), as the case may be, is not entered into, the applicant or the Tlicho Government may, after having participated in mediation under chapter 6 of the Tlicho Agreement, apply to the Wekeezhii Land and Water Board for a determination of compensation.

• Marginal note:Determination of compensation

  (2) On an application under subsection (1), the Board shall determine the compensation payable in respect of the proposed use of waters or deposit of waste, taking into consideration

  • (a) the effect of the proposed use or deposit on

    • (i) the use by Tlicho citizens of waters when on or flowing through Tlicho lands, or waters adjacent to Tlicho lands,

    • (ii) Tlicho lands, taking into account any cultural or special value of those lands to the Tlicho First Nation, and

    • (iii) wildlife harvesting carried on by Tlicho citizens;

  • (b) the nuisance or inconvenience, including noise, caused by the proposed use or deposit to Tlicho citizens on Tlicho lands; and

  • (c) any other factor that the Board considers relevant in the circumstances.

• Marginal note:Form of compensation

  (3) The compensation may be in the form of a lump sum payment or periodic payments or non-monetary compensation, including replacement of, or substitution for, damaged or lost property or relocation of Tlicho citizens or their property, or any combination of those forms of compensation.

Cost Recovery

Marginal note:Obligation to pay

• 79.4 (1) The applicant or a licensee shall pay to the federal Minister the following amounts and costs relating to the consideration of an application for a licence or for the amendment, renewal or cancellation of a licence:

  • (a) any amounts that are prescribed by the regulations and that are related to the exercise of the powers and performance of the duties and functions of a board or of its members;

  • (b) any costs incurred by a board for services that are prescribed by the regulations and that are provided to it by a third party; and

  • (c) any amounts that are prescribed by the regulations and that are related to the exercise of the powers and performance of the duties and functions of the federal Minister.

• Marginal note:Debt due to Her Majesty

  (2) The amounts and costs that a person is to pay under subsection (1) constitute a debt due to Her Majesty in right of Canada and may be recovered as such in any court of competent jurisdiction.

Access to Construction Materials

Marginal note:Duty to supply

• 80 (1) The Gwich’in or Sahtu First Nation shall supply and permit access to sand, gravel, clay and like construction materials situated on its first nation lands to any person or any department or agency of the federal or territorial government that requests the same where no alternate source of supply is reasonably available in the surrounding area.

• Marginal note:Compensation

  (2) The Gwich’in or Sahtu First Nation is entitled to fair and reasonable compensation for any construction materials supplied or obtained from its first nation lands.

• Marginal note:Reference to Board

  (3) On application by the person or department or agency requesting the supply or access, the Gwich’in Land and Water Board or the Sahtu Land and Water Board, as the case may be, shall

  • (a) determine whether an alternate source of supply is reasonably available in the surrounding area; or

  • (b) resolve any dispute concerning terms or conditions of supply or access or priorities between a first nation and other users of the construction materials.

• Marginal note:Settlement lands outside settlement area

  (4) Where first nation lands from which construction materials are requested are situated outside the first nation’s settlement area but within the Northwest Territories, the board shall consult the resource management authority having jurisdiction in respect of those lands before making any determination under subsection (3).

Marginal note:Duty to supply — Tlicho Government

• 80.1 (1) The Tlicho Government shall supply, and permit access to, sand, gravel, clay and like construction materials situated on Tlicho lands to any person that requests it, including any department or agency of the federal or territorial government or any local government of a Tlicho community.

• Marginal note:Exception

  (2) Subsection (1) does not apply if the materials are to be used on lands other than Tlicho lands, unless no alternate source of supply is reasonably available in an area closer to the lands where the materials are to be used.

• Marginal note:Compensation — Tlicho Government

  (3) The Tlicho Government is entitled to be paid for the value of materials supplied under subsection (1) and for the exercise of a right of access to the materials under that subsection, unless the materials are to be used for a public purpose on Tlicho lands or in a Tlicho community or for a public road contiguous to Tlicho lands or to a Tlicho community.

• Marginal note:Reference to Wekeezhii Land and Water Board

  (4) On application by any person, department, agency or government requesting the supply of, or access to, materials under subsection (1) and after the applicant has participated in mediation under chapter 6 of the Tlicho Agreement, the Wekeezhii Land and Water Board shall

  • (a) determine, for the purpose of subsection (2), whether an alternate source of supply is reasonably available in an area closer to the lands where the materials are to be used;

  • (b) determine, for the purpose of subsection (3), whether the materials are to be used for a public purpose on Tlicho lands or in a Tlicho community or for a public road contiguous to Tlicho lands or a Tlicho community;

  • (c) resolve any dispute concerning terms or conditions of supply or access, excluding the amount to be paid under subsection (3); or

  • (d) resolve any dispute concerning conflicting uses of materials referred to in subsection (1) by the applicant and by the Tlicho Government or Tlicho citizens.

• Marginal note:Reference to Board by Tlicho Government

  (5) In the case of a dispute referred to in paragraph (4)(d), an application for its resolution may also be made to the Board by the Tlicho Government after it has participated in mediation under chapter 6 of the Tlicho Agreement.

Powers and Duties of Federal Minister

81 [Repealed, 2014, c. 2, s. 173]

Marginal note:Consultation with boards

82 The federal Minister shall consult the boards with respect to the amendment of this Act or the making or amendment of any instrument under this Act.

Policy Directions

Marginal note:Minister’s policy directions to board

• 83 (1) The federal Minister may, after consultation with a board, give written policy directions that are binding on the board with respect to the exercise of any of its functions under this Act. The federal Minister shall also consult the Tlicho Government before giving such written policy directions to the Wekeezhii Land and Water Board.

• Marginal note:Notice to Déline Got’ine Government

  (1.1) The federal Minister shall inform the Déline Got’ine Government, to the extent provided for in 2.7.1 of the Déline Agreement, of the Minister’s intention to give a written policy direction to the Sahtu Land and Water Board if the policy direction is in relation to the use of land or water or the deposit of waste in the area described in schedule A to the Déline Agreement.

• Marginal note:Policy directions by the Tlicho Government to the Wekeezhii Board

  (2) The Tlicho Government may, after consultation with the Wekeezhii Land and Water Board and the federal Minister, give written policy directions with respect to the exercise of any of its functions under this Part in relation to the use of Tlicho lands. Policy directions shall be binding on the Board to the extent that compliance with them does not require the Board to exceed its approved budget.

• Marginal note:Policy directions by Déline Got’ine Government

  (2.1) The Déline Got’ine Government may, after consultation with the Sahtu Land and Water Board and the federal Minister, give written policy directions to the Board with respect to the performance of any of the Board’s functions under this Part in relation to the use of Déline lands. Policy directions are binding on the Board to the extent that compliance with them does not require the Board to exceed its approved budget.

• Marginal note:Limitation

  (3) Except as provided by subsection (4), policy directions do not apply in respect of any application that, at the time the directions are given, is pending before a board or has been approved by a board and is awaiting approval under section 72.13 or under any territorial law, as the case may be.

• Marginal note:Exception

  (4) Policy directions apply in respect of an application referred to in subsection (3) if their non-application could result in the inconsistency of a licence, permit or authorization with another Act or with a regulation or order made under another Act.

• Marginal note:Conflict between policy directions

  (5) If there is a conflict between policy directions given by the federal Minister under subsection (1) and policy directions given by the Tlicho Government under subsection (2) or by the Déline Got’ine Government under subsection (2.1), the policy directions given under subsection (2) or (2.1), as the case may be, prevail to the extent of the conflict.

• Marginal note:Conflict between legislation and policy directions

  (6) If there is a conflict between policy directions given by the federal Minister, the Tlicho Government or the Déline Got’ine Government under this section and the provisions of any Act of Parliament, of any regulations made under an Act of Parliament or of any territorial law, those provisions prevail to the extent of the conflict.

Administration and Enforcement

Designation

Marginal note:Designation

• 84 (1) The federal Minister may designate any qualified person, or a class of qualified persons, as an inspector to exercise powers relating to verifying compliance or preventing non-compliance with this Part and orders made under section 86 or 86.1.

• Marginal note:Designation — analyst

  (2) The federal Minister may designate any qualified person as an analyst for the purposes of this Part.

Powers

Marginal note:Authority to enter

• 85 (1) An inspector may, for the purpose of verifying compliance or preventing non-compliance with this Part or orders made under section 86 or 86.1, enter a place in which they have reasonable grounds to believe that

  • (a) a person is using land;

  • (b) a person is using water or depositing waste in a federal area within a water management area;

  • (c) in a federal area within a water management area a person is constructing any work that, on completion, will form part of an undertaking whose operation will require the use of waters or the deposit of waste, or altering or extending a work that forms part of such an undertaking; or

  • (d) a document or any thing relating to a use or deposit referred to in paragraph (a), (b) or (c) is located.

• Marginal note:Powers on entry

  (2) The inspector may, for the purposes referred to in subsection (1),

  • (a) examine anything in the place;

  • (b) use any means of communication in the place or cause it to be used;

  • (c) use any computer system in the place, or cause it to be used, to examine data contained in or available to that system;

  • (d) prepare a document, or cause one to be prepared, based on the data;

  • (e) use any copying equipment in the place, or cause it to be used;

  • (f) take measurements or samples of anything in the place;

  • (g) remove any thing from the place for examination or copying;

  • (h) take photographs and make recordings or sketches;

  • (i) order the owner or person in charge of the place or any person at the place to establish their identity to the inspector’s satisfaction or to stop or start an activity;

  • (j) order the owner or person having possession, care or control of any thing in the place to not move it, or to restrict its movement, for as long as, in the inspector’s opinion, is necessary;

  • (k) direct any person to put any machinery, vehicle or equipment in the place into operation or to cease operating it; and

  • (l) prohibit or limit access to all or part of the place.

• Marginal note:Certificate

  (3) The federal Minister shall provide every inspector with a certificate of designation. On entering any place, the inspector shall, if so requested, produce the certificate to the occupant or person in charge of the place.

• Marginal note:Notice

  (4) An inspector shall, if it is reasonable to do so, give prior notice of their entry to

  • (a) the Gwich’in or Sahtu First Nation, if the entry is on its first nation lands;

  • (b) the Tlicho Government, if the entry is on Tlicho lands; or

  • (c) the Déline Got’ine Government, if the entry is on Déline lands.

• (5) [Repealed, 2019, c. 19, s. 7]

• (6) [Repealed, 2019, c. 19, s. 7]

Marginal note:Warrant for dwelling-house

• 85.1 (1) If the place referred to in subsection 85(1) is a dwelling-house, the inspector may only enter it with the occupant’s consent or under the authority of a warrant issued under subsection (2).

• Marginal note:Authority to issue warrant

  (2) On ex parte application, a justice of the peace may issue a warrant authorizing the inspector who is named in it to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice of the peace is satisfied by information on oath that

  • (a) the dwelling-house is a place referred to in subsection 85(1);

  • (b) entry to the dwelling-house is necessary for the purpose of verifying compliance or preventing non-compliance with this Part or orders made under section 86 or 86.1; and

  • (c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused or that consent to entry cannot be obtained from the occupant.

Marginal note:Entering private property

• 85.2 (1) For the purpose of gaining entry to a place referred to in subsection 85(1), an inspector may enter and pass through private property. For greater certainty, no person has a right to object to that use of the property and no warrant is required for the entry, unless the property is a dwelling-house.

• Marginal note:Person accompanying inspector

  (2) A person may, at the inspector’s request, accompany the inspector to assist them in gaining entry to the place referred to in subsection 85(1) and is not liable for doing so.

Marginal note:Use of force

85.3 In executing a warrant to enter a dwelling-house, an inspector is not permitted to use force unless the use of force has been specifically authorized in the warrant and the inspector is accompanied by a peace officer.

Orders

Marginal note:Inspector’s order — adverse effects of land use

• 86 (1) If an inspector has reasonable grounds to believe that a use of land has resulted in or is likely to result in an adverse effect on the environment, the inspector may, in accordance with the regulations, order the person who is using the land to take any measures that the inspector considers reasonable to mitigate, remedy or prevent the adverse effect.

• Marginal note:Inspector’s order — contravention

  (2) If an inspector has reasonable grounds to believe that a person who is using land is contravening the regulations or the conditions of a permit, the inspector may, in accordance with the regulations, order that person to take any measures that the inspector considers reasonable in order to prevent the contravention from continuing.

• Marginal note:Notice

  (3) An order shall be provided in the form of a written notice and shall include

  • (a) a statement of the reasons for the order; and

  • (b) the time and manner in which the order is to be carried out.

Marginal note:Remedial measures

• 86.1 (1) Whether or not a report has been made under subsection 72.01(3), an inspector may order a person who is using water or depositing waste in a federal area to take any reasonable measures that the inspector may specify, including the cessation of an activity, to prevent a use of waters, deposit of waste or failure of a work from occurring or to counteract, mitigate or remedy adverse effects of that use, deposit or failure, if an inspector has reasonable grounds to believe

  • (a) that

    • (i) waters have been or may be used in contravention of subsection 72(1) or of a condition of a licence,

    • (ii) waste has been or may be deposited in contravention of subsection 72.01(1) or of a condition of a licence, or

    • (iii) there has been, or may be, a failure of a work related to the use of waters or the deposit of waste, whether or not there has been compliance with any standards prescribed by regulations made under paragraph 90.3(1)(j) and with any standards imposed by a licence; and

  • (b) that a danger to persons, property or the environment results, or may reasonably be expected to result, from the adverse effects of that use, deposit or failure.

• Marginal note:Notice

  (2) The order shall be provided in the form of a written notice and shall include

  • (a) a statement of the reasons for the order; and

  • (b) the time and manner in which the order is to be carried out.

Marginal note:Failure to comply

• 86.2 (1) If a person does not comply with an order made under subsection 86(1) or (2) or section 86.1 within the time specified, the inspector may, on their own initiative, take the measures specified in the order.

• Marginal note:Recovery of Her Majesty’s costs

  (2) Any portion of the reasonable costs incurred by Her Majesty in right of Canada in the taking of measures under subsection (1) constitutes a debt due to Her Majesty recoverable from the person in a court of competent jurisdiction or by recourse to any security furnished under section 71 or 72.11, as the case may be.

Marginal note:Assistance to inspectors

• 87 (1) The owner or person in charge of the place entered under section 85, and every person in it, shall give an inspector all assistance that is reasonably required to enable the inspector to verify compliance or prevent non-compliance with this Part and orders made under section 86 or 86.1, and shall provide any documents, data or information that is reasonably required for that purpose.

• Marginal note:Obstruction

  (2) It is prohibited to knowingly obstruct or hinder an inspector who is exercising their powers or performing their duties and functions under this Act.

• Marginal note:False statements or information

  (3) It is prohibited to knowingly make a false or misleading statement or knowingly provide false or misleading information in connection with any matter under this Act to an inspector who is exercising their powers or performing their duties and functions under this Act.

Marginal note:Review by board

88 A board shall, if so requested by a person who is subject to an order made by an inspector under subsection 86(1) or (2) or section 86.1, review that order without delay and confirm, vary or revoke it.

Marginal note:Work closed or abandoned

• 89 (1) The federal Minister may take any reasonable measures to prevent, counteract, mitigate or remedy any adverse effect, in a federal area, on persons, property or the environment, and for that purpose may enter any place in a federal area, except one that is designed to be used and is being used as a permanent or temporary dwelling-house, if the federal Minister has reasonable grounds to believe that

  • (a) a person has closed or abandoned, temporarily or permanently, a work related to the use of waters or the deposit of waste, and

  • (b) either

    • (i) the person has contravened or failed to comply with any condition of a licence or any provision of this Act or the regulations, whether or not the condition or provision relates to closing or abandonment, or

    • (ii) a danger to persons, property or the environment may result from the past operation of the work or from its closing or abandonment.

• Marginal note:Recovery of Her Majesty’s costs

  (2) Any portion of the reasonable costs incurred by Her Majesty in right of Canada in the taking of measures under subsection (1), to the extent that the incurring of those costs was based on subparagraph (1)(b)(i), constitutes a debt due to Her Majesty recoverable from the person in a court of competent jurisdiction or by recourse to any security furnished under section 72.11.

Regulations and Rules

Marginal note:Regulations respecting the use of land

90 The Governor in Council may, following consultation by the federal Minister with first nations and the Tlicho Government, make regulations respecting the protection, control and use of lands in the Mackenzie Valley and, in particular, may make regulations

• (a) prohibiting uses of land or classes of uses except under the authority of permits or, where the regulations so provide, under the written authority of an inspector;

• (b) respecting the issuance, amendment, renewal, suspension, cancellation, and approval of the assignment, of permits;

• (c) respecting eligibility for permits, prescribing the conditions or kinds of conditions that a board may include in permits and respecting the duration of permits;

• (d) providing for the issuance to permittees by a board of authorizations for uses of land not authorized in their permits;

• (e) prescribing the procedure to be followed and forms to be used by applicants for permits, the information to be submitted in connection with applications and the manner of its submission, and respecting the fees to be paid on the filing of applications;

• (f) respecting fees to be paid by permittees in respect of permitted uses of lands belonging to Her Majesty in right of Canada or lands that Her Majesty has power to dispose of, other than such lands the administration and control of which has been transferred by the Governor in Council to the Commissioner of the Northwest Territories;

• (g) prescribing classes to which permits referred to in an instrument of delegation under section 70 must belong;

• (h) specifying the amount, or the manner of determining the amount, of the security referred to in subsection 71(1) or empowering a board to fix the amount of that security, subject to any maximum that may be specified for that purpose, prescribing the form and conditions of the security, and specifying the circumstances and manner in which it shall be refunded;

• (i) prescribing the form of the register to be maintained by a board pursuant to section 72 and the information to be entered in it, and respecting the fees, if any, to be paid to examine the register or to obtain copies from it;

• (j) respecting the power of inspectors to order the taking of measures pursuant to subsection 86(1) or (2);

• (k) authorizing inspectors to enter and inspect lands to which an application relates;

• (l) respecting the restoration of lands to which a permit applies;

• (m) authorizing a board or an inspector to relieve permittees from specified obligations under the regulations; and

• (n) authorizing a board or an inspector to require permittees to submit reports to them on specified matters.

Marginal note:Prohibition — Tlicho lands

90.1 Even if the regulations do not require a permit or authorization under Part 3 or 4 for a particular use of land, no person shall use Tlicho lands without such a permit or authorization if one is required by a Tlicho law for uses of that type.

Marginal note:Prohibition  — Déline lands

90.11 Even if the regulations do not require a permit or other authorization under Part 3 or 4 for a particular use of land, a person shall not use Déline lands without such a permit or authorization if one is required by a Déline law for uses of that type.

Marginal note:Exception

90.2 Despite the regulations, a permit or other authorization under Part 3 or 4 for a particular use of land in a Tlicho community is not required if the local government of that community has enacted a bylaw providing that one is not required for uses of that type.

Marginal note:Exception

90.21 Despite the regulations, a permit or other authorization under Part 3 or 4 for a particular use of lands in the Community of Déline, as described in schedule B to the Déline Agreement, is not required if a Déline law provides that one is not required for uses of that type.

Marginal note:Regulations — federal areas

• 90.3 (1) The Governor in Council may, following consultation by the federal Minister with the Gwich’in and Sahtu First Nations and the Tlicho Government, make regulations respecting the use of waters and the deposit of waste in federal areas and, in particular, may make regulations

  • (a) on the recommendation of the federal Minister and a board,

    • (i) establishing water management areas consisting of river basins or other geo­graph­ical areas, and

    • (ii) classifying purposes of waters use in any water management area;

  • (b) prescribing, for the purposes of paragraphs (b) to (d) of the definition waste in section 51,

    • (i) substances and classes of substances,

    • (ii) quantities or concentrations of substances and classes of substances in water, and

    • (iii) treatments, processes and changes of water;

  • (c) setting out the criteria to be applied by a board in determining whether a proposed use of waters or deposit of waste for which a licence is required under this Act requires a type A licence or a type B licence;

  • (d) setting out the procedure to be followed on an application to a board;

  • (e) prescribing the forms to be used for applications to a board, the information to be submitted to a board in connection with any application and the form in which any of that information is to be submitted;

  • (f) prescribing forms, in addition to any forms prescribed under paragraph (e);

  • (g) respecting the amount of the security referred to in subsection 72.11(1), and prescribing the form and conditions of the security, which regulations may empower a board to fix the amount of the security subject to a maximum specified in, or determined in accordance with, those regulations;

  • (h) prescribing water quality standards;

  • (i) prescribing effluent standards;

  • (j) prescribing standards for the design, construction, operation and maintenance of works related to the use of waters or the deposit of waste;

  • (k) prescribing fees to be paid for the right to use waters or deposit waste under a licence;

  • (l) prescribing the times at which and the manner in which fees prescribed under paragraph (k) shall be paid;

  • (m) subject to any order made under subsection 91.1(2), authorizing the use without a licence of waters in a water management area for a purpose or use, in a quantity or at a rate, or for a period, or any combination of purpose, use, quantity, rate or period, specified in the regulations, and prescribing the conditions under which those waters may be used without a licence;

  • (n) subject to any order made under subsection 91.1(2), prescribing quantities, concentrations and types of waste that may be deposited without a licence, and the conditions under which any such waste may be deposited;

  • (o) prescribing the manner in which a report under subsection 72.01(3) is to be made and the information to be contained in it and designating a person or authority, in lieu of an inspector, to whom the report is to be made;

  • (p) requiring persons who use waters or deposit waste in a water management area

    • (i) to maintain books and records for the proper enforcement of this Part, and

    • (ii) to submit to a board, on a regular monthly, quarterly, semi-annual or annual basis, a report on any of their operations to which this Part applies, and specifying the information to be contained in it;

  • (q) requiring persons who deposit waste in a water management area

    • (i) to submit representative samples of the waste to a board for analysis, or

    • (ii) to analyse representative samples of the waste and submit the results of the analysis to a board;

  • (r) respecting the taking of representative samples of waters or waste and respecting the method of analysis of those samples;

  • (s) respecting the duties of persons designated as analysts under subsection 84(2);

  • (t) prescribing anything that is to be prescribed under this Act; and

  • (u) generally, for carrying out the purposes and provisions of this Part.

• Marginal note:Regulations — Mackenzie Valley

  (2) The Governor in Council may, following consultation by the federal Minister with the Gwich’in and Sahtu First Nations and the Tlicho Government, make regulations respecting the use of waters and the deposit of waste in the Mackenzie Valley

  • (a) prescribing fees to be paid

    • (i) for the filing of any application with the board, and

    • (ii) for examination of the register maintained under section 68;

  • (b) prescribing the times at which and the manner in which fees prescribed under paragraph (a) shall be paid; and

  • (c) prescribing the form of the register to be maintained by a board under section 68 and the information to be entered in it.

• Marginal note:Regulations may vary

  (3) Regulations made under subsection (1) may vary according to any criterion or combination of criteria, including the use of waters, the purpose, quantity and rate of that use, and the quantities, concentrations and types of waste deposited.

Marginal note:Regulations respecting cost recovery

90.31 The Governor in Council may, following consultation by the federal Minister with first nations, the Tlicho Government, the territorial Minister and the boards, make regulations respecting the recovery of amounts and costs for the purposes of section 79.4, including prescribing the amounts and services for the purposes of that section and exempting any class of applicants or licensees from the application of that section.

Marginal note:Regulations respecting consultation

90.32 The Governor in Council may, following consultation by the federal Minister with first nations, the Tlicho Government, the territorial Minister and the boards, make regulations establishing requirements respecting any consultation that may be undertaken under this Part, whether or not it is expressly provided for, by any person or entity with a first nation, the Tlicho First Nation, the Tlicho Government or an Aboriginal people who uses an area outside the Mackenzie Valley, including the manner in which it is to be conducted, and providing for the delegation of certain procedural aspects of that consultation.

Marginal note:Incorporation by reference

• 90.4 (1) A regulation made under this Part may incorporate by reference any documents produced by a person other than the federal Minister or by a body.

• Marginal note:Reproduced or translated material

  (2) A regulation made under this Part may incorporate by reference documents that the federal Minister reproduces or translates from documents produced by a body or person other than the federal Minister

  • (a) with any adaptations of form and reference that will facilitate their incorporation into the regulation; or

  • (b) in a form that sets out only the parts of them that apply for the purposes of the regulation.

• Marginal note:Jointly produced documents

  (3) A regulation made under this Part may incorporate by reference documents that the federal Minister produces jointly with another government for the purpose of harmonizing the regulation with other laws.

• Marginal note:Internally produced standards

  (4) A regulation made under this Part may incorporate by reference technical or explanatory documents that the federal Minister produces, including

  • (a) specifications, classifications, illustrations, graphs or other information of a technical nature; and

  • (b) test methods, procedures, operational standards, safety standards or performance standards of a technical nature.

• Marginal note:Incorporation as amended from time to time

  (5) Documents may be incorporated by reference as amended from time to time.

• Marginal note:For greater certainty

  (6) Subsections (1) to (5) are for greater certainty and do not limit any authority to make regulations incorporating material by reference that exists apart from those subsections.

• Marginal note:Accessibility

  (7) The federal Minister shall ensure that any document that is incorporated by reference in the regulation is accessible.

• Marginal note:Defence

  (8) A person is not liable to be found guilty of an offence or subjected to an administrative sanction for any contravention in respect of which a document that is incorporated by reference in the regulation is relevant unless, at the time of the alleged contravention, the document was accessible as required by subsection (7) or it was otherwise accessible to the person.

• Marginal note:No registration or publication

  (9) For greater certainty, a document that is incorporated by reference in the regulation is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.

Marginal note:Rules

91 A board may make rules

• (a) specifying the period of time within which compensation agreements referred to in sections 77 and 78 must be entered into; and

• (b) respecting the determination of matters in dispute under section 80 or 80.1.

Orders

Marginal note:Reservation of lands from disposition

• 91.1 (1) The Governor in Council may, by order, reserve from disposition under any enactment relating to the disposition of any lands in a federal area, for a specified period or otherwise, all or any interests in such lands if the interests are, in the opinion of the Governor in Council, required

  • (a) for the protection of any waters; or

  • (b) in connection with any undertaking the development or operation of which is, in the opinion of the Governor in Council, in the public interest and that would require the use of those interests in lands and of waters adjacent to those lands.

• Marginal note:Reservation of water rights

  (2) The Governor in Council may, by order and for a specified period or otherwise, direct a board not to issue any licence in respect of a federal area relating to any waters specified in the order, or prohibit a use of waters or a deposit of waste that would otherwise be permitted under regulations made under paragraph 90.3(1)(m) or (n), as the case may be,

  • (a) to enable comprehensive evaluation and planning to be carried out with respect to those waters; or

  • (b) if the use and flow of those waters, or the maintenance of the quality of those waters, is required in connection with a particular undertaking whose development is, in the opinion of the Governor in Council, in the public interest.

• Marginal note:Effect of contravention of order

  (3) A disposition of all or any interests in any lands in a federal area in contravention of an order made under subsection (1), and a licence issued in contravention of an order made under subsection (2), is of no force or effect.

Offences and Punishment

Marginal note:Principal offences — land use

• 92 (1) Every person who contravenes section 90.1, any provision of regulations made under section 90, any condition of a permit or an order of an inspector under subsection 86(1) or (2) is guilty of an offence and is liable on summary conviction

  • (a) for a first offence, to a fine not exceeding $100,000 or to imprisonment for a term not exceeding six months, or to both; and

  • (b) for a second or subsequent offence, to a fine not exceeding $200,000 or to imprisonment for a term not exceeding six months, or to both.

• Marginal note:Reparation

  (2) In addition to the penalty provided by subsection (1), a court that convicts a person of using land without a permit may, taking into account the nature of the offence and the circumstances of its commission, order the person to take any measures that it considers reasonable in order to repair or limit any damage resulting from the act or omission that constituted the offence.

• (3) [Repealed, 2014, c. 2, s. 187]

• Marginal note:Contravening orders

  (4) Every person who contravenes subsection 87(1), (2) or (3), in relation to the use of land, is guilty of an offence and is liable on summary conviction

  • (a) for a first offence, to a fine not exceeding $100,000 or to imprisonment for a term not exceeding six months, or to both; and

  • (b) for a second or subsequent offence, to a fine not exceeding $200,000 or to imprisonment for a term not exceeding six months, or to both.

Marginal note:Principal offences — water use and waste deposit

• 92.01 (1) Every person is guilty of an offence who

  • (a) contravenes subsection 72(1) or section 72.01;

  • (b) fails to comply with subsection 72(3); or

  • (c) contravenes or fails to comply with an order given by an inspector under section 86.1.

• Marginal note:Punishment

  (2) Every person who is guilty of an offence under subsection (1) is liable on summary conviction,

  • (a) for a first offence, to a fine not exceeding $250,000 or to imprisonment for a term not exceeding one year, or to both; and

  • (b) for a second or subsequent offence, to a fine not exceeding $500,000 or to imprisonment for a term not exceeding one year, or to both.

Marginal note:Offences — type A licensees

• 92.02 (1) Every type A licensee who holds such a licence in respect of a federal area is guilty of an offence who

  • (a) contravenes or fails to comply with any condition of the licence, if the contravention or failure to comply does not constitute an offence under section 92.04; or

  • (b) without reasonable excuse, fails to furnish or maintain security as required under subsection 72.11(1).

• Marginal note:Punishment

  (2) Every licensee who commits an offence under subsection (1) is liable on summary conviction,

  • (a) for a first offence, to a fine not exceeding $250,000 or to imprisonment for a term not exceeding one year, or to both; and

  • (b) for a second or subsequent offence, to a fine not exceeding $500,000 or to imprisonment for a term not exceeding one year, or to both.

Marginal note:Offences — type B licensees

• 92.03 (1) Every type B licensee who holds such a licence in respect of a federal area is guilty of an offence who

  • (a) contravenes or fails to comply with any condition of the licence, if the contravention or failure to comply does not constitute an offence under section 92.04; or

  • (b) without reasonable excuse, fails to furnish or maintain security as required under subsection 72.11(1).

• Marginal note:Punishment

  (2) Every licensee who is guilty of an offence under subsection (1) is liable on summary conviction,

  • (a) for a first offence, to a fine not exceeding $37,500 or to imprisonment for a term not exceeding six months, or to both; and

  • (b) for a second or subsequent offence, to a fine not exceeding $75,000 or to imprisonment for a term not exceeding six months, or to both.

Marginal note:Other offences — water use and waste deposit

92.04 Every person is guilty of an offence punishable on summary conviction who

• (a) contravenes or fails to comply with subsection 87(1), (2) or (3), in relation to the use of waters or the deposit of waste in a federal area, or any regulations made under paragraph 90.3(1)(p), (q) or (r); or

• (b) except as authorized under this Part or any other Act of Parliament, wilfully obstructs or otherwise interferes with a licensee who holds a licence in respect of a federal area or any person acting on behalf of the licensee in the exercise of any rights granted to the licensee under this Part.

Marginal note:Continuing offences

92.05 An offence under subsection 92(1), 92.01(1), 92.02(1) or 92.03(1) that is committed or continued on more than one day constitutes a separate offence for each day on which it is committed or continued.

Marginal note:Deeming — subsequent offence for land use

• 92.1 (1) For the purposes of subsections 92(1) and (4), a conviction for a particular offence under this Act is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the offender has been previously convicted of a substantially similar offence under an Act of Parliament — or an Act of the legislature of a province — that relates to environmental or wildlife conservation or protection or heritage resources.

• Marginal note:Deeming — subsequent offence for water use

  (1.1) For the purposes of subsections 92.01(2), 92.02(2) and 92.03(2), a conviction for a particular offence under this Act is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the offender has been previously convicted of a substantially similar offence under an Act of Parliament — or an Act of the legislature of a province — that relates to environmental or wildlife conservation or protection.

• Marginal note:Application

  (2) Subsections (1) and (1.1) apply only to previous convictions on indictment, to previous convictions on summary conviction and to previous convictions under any similar procedure under any Act of the legislature of a province.

Marginal note:Limitation period or prescription

93 No proceedings in respect of an offence under section 92, 92.01, 92.02, 92.03, 92.04 or 92.05 are to be instituted more than five years after the day on which the federal Minister becomes aware of the acts or omissions that constitute the alleged offence.

Marginal note:Admissibility of evidence

• 93.1 (1) In proceedings for an offence under this Part, a certificate, report or other document of the federal Minister, a board or an inspector that is purported to have been signed by that person or board is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, is proof of the matters asserted in it.

• Marginal note:Copies and extracts

  (2) In proceedings for an offence under this Part, a copy of or an extract from any document that is made by the federal Minister, a board or an inspector that appears to have been certified under the signature of that person or board as a true copy or extract is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, has the same probative force as the original would have if it were proved in the ordinary way.

• Marginal note:Presumed date of issue

  (3) A document referred to in this section is, in the absence of evidence to the contrary, presumed to have been issued on the date that it bears.

• Marginal note:Notice

  (4) No document referred to in this section is to be received in evidence unless the party intending to produce it has provided reasonable notice of that intention to the party against whom it is intended to be produced together with a copy of the document.

Marginal note:Certificate of analyst

• 93.2 (1) Subject to this section, a certificate purporting to be signed by an analyst and stating that the analyst has analysed or examined a sample submitted to the analyst by an inspector and stating the result of the analysis or examination is admissible in evidence in any prosecution under this Part and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate, without proof of the signature or official character of the person appearing to have signed the certificate.

• Marginal note:Attendance of analyst

  (2) A party against whom a certificate of an analyst is produced under subsection (1) may, with leave of the court, require the attendance of the analyst for the purposes of cross-examination.

• Marginal note:Notice

  (3) No certificate is to be received in evidence under subsection (1) unless the party intending to produce it has provided reasonable notice of that intention to the party against whom it is intended to be produced together with a copy of the certificate.

Exemptions

Marginal note:Posting of security

94 Notwithstanding section 7, Her Majesty in right of Canada and, for greater certainty, the territorial government shall not be required to post security pursuant to section 71.

Marginal note:Fees

95 Despite subsection 72.03(1) or any territorial law, the Gwich’in and Sahtu First Nations, the Tlicho Government and the Déline Got’ine Government are not required to pay any fee in respect of the use of waters or the deposit of waste for non-commercial purposes on their first nation lands, Tlicho lands or Déline lands as the case may be.

PART 4Mackenzie Valley Land and Water Board

Interpretation and Application

Marginal note:Definitions

• 96 (1) The definitions in this subsection apply in this Part.

  Board

  Board means the Mackenzie Valley Land and Water Board established by subsection 99(1). (Office)

  licence

  licence means

  • (a) with respect to a federal area, a type A or type B licence permitting the use of waters or the deposit of waste, or both, issued by the Board under this Part; or

  • (b) with respect to lands outside a federal area, a type A or type B licence or any other licence relating to the use of waters or the deposit of waste, or both, issued by the Board under this Part in accordance with any territorial law. (permis d’utilisation des eaux)

  permit

  permit means a permit for the use of land issued by the Board under this Part, and “permittee” has a corresponding meaning. (permis d’utilisation des terres)

• Marginal note:Terms defined in Part 3

  (2) In this Part, the expressions first nation lands, land, management area and waters have the same meaning as in Part 3.

• Marginal note:Meaning of permit

  (3) For the purposes of this Part, references to a permit in section 90, in the regulations made pursuant to that section and in sections 90.1, 90.2 and 92 include a permit as defined in subsection (1).

• Marginal note:Reference to “licence”

  (4) For the purposes of this Part, a reference to “licence” in section 90.3, in the regulations made under that section and in sections 72.02, 79.4 and 92.02 to 92.04 includes a licence as defined in subsection (1).

Marginal note:National parks and historic sites

• 97 (1) Subject to paragraph 102(2)(b), this Part does not apply in respect of the use of land or waters or the deposit of waste within a park or park reserve to which the Canada National Parks Act applies or within lands acquired pursuant to the Historic Sites and Monuments Act.

• Marginal note:Consultation with Board

  (2) Notwithstanding subsection (1), an authority responsible for authorizing uses of land or waters or deposits of waste in a portion of the Mackenzie Valley excluded by that subsection from the application of this Part shall consult the Board before authorizing any such use or deposit.

• Marginal note:Consultation with authority

  (3) The Board shall consult the responsible authority referred to in subsection (2) before issuing a licence, permit or authorization for a use of land or waters or deposit of waste that may have an effect in the portion of the Mackenzie Valley excluded by subsection (1) from the application of this Part.

Marginal note:Local government jurisdiction

• 98 (1) This Part does not apply in respect of the use of land within the boundaries of a local government to the extent that the local government regulates that use.

• Marginal note:Agreement

  (2) The Board and the territorial Minister shall, in consultation with each local government, jointly determine the extent to which the local government regulates the use of land within its boundaries for the purposes of subsection (1).

• Marginal note:Dissemination

  (3) A determination under subsection (2) shall be made available to the public at the main office of the Board and that of the local government.

Establishment of Board

Marginal note:Board established

• 99 (1) There is hereby established a board to be known as the Mackenzie Valley Land and Water Board.

• Marginal note:Regional panels — Gwich’in and Sahtu Boards

  (2) On the coming into force of this Part, a board established by section 54 or 56 continues as a regional panel of the Board under the same name and in respect of the same management area as that of the board. Its members become members of the Board.

• Marginal note:Regional panel — Wekeezhii Board

  (2.1) Six months after the coming into force of section 57.1, the board established by that section continues as a regional panel of the Board under the same name and in respect of the same management area as that of the board. Its members become members of the Board.

• Marginal note:Applicable provisions

  (3) For greater certainty, the provisions of Part 1 respecting the appointment, term of office and removal from office of members of a board and respecting the chairperson of a board, and the provisions of Part 3 respecting the appointment of members of a board, the quorum of a board, its main office and members acting after the expiry of their term, continue to apply to a regional panel.

• Marginal note:Composition

  (4) In addition to the members of the regional panels referred to in subsections (2) and (2.1) and a chairperson, the Board shall, subject to subsection 108(7), consist of

  • (a) two members appointed following consultation by the federal Minister with the first nations and the Tlicho Government;

  • (b) one member appointed on the nomination of the territorial Minister; and

  • (c) one other member.

Marginal note:Annual meeting

100 The Board shall hold at least one plenary meeting in each year.

Marginal note:Main office

101 The main office of the Board shall be at Yellowknife or at such other place in the Mackenzie Valley as is designated by the Governor in Council.

Mandate of Board

Marginal note:Objectives — Board

• 101.1 (1) The objectives of the Board are to provide for the conservation, development and utilization of land and water resources in a manner that will provide the optimum benefit generally for all Canadians and in particular for residents of the Mackenzie Valley.

• Marginal note:Objectives — Gwich’in and Sahtu regional panels

  (2) The objectives of a regional panel referred to in subsection 99(2) are to provide for the conservation, development and utilization of land and water resources in a manner that will provide the optimum benefit for residents of its management area and of the Mackenzie Valley and for all Canadians.

• Marginal note:Objectives — Wekeezhii regional panel

  (3) The objectives of the regional panel referred to in subsection 99(2.1) are to provide for the conservation, development and utilization of land and water resources in a manner that will provide the optimum benefit generally for all Canadians and in particular for residents of its management area.

Marginal note:Jurisdiction — Board

• 102 (1) The Board has jurisdiction in respect of all uses of land in the Mackenzie Valley for which a permit is required under Part 3 and in respect of all uses of waters or deposits of waste in the Mackenzie Valley for which a licence is required under Part 3 or any territorial law, as the case may be, and for that purpose the Board has the powers and duties of a board established under Part 3, other than powers under sections 78, 79 and 79.2 to 80.1, as if a reference in that Part to a management area were a reference to the Mackenzie Valley, except that, with regard to subsection 61(2), the reference to management area continues to be a reference to Wekeezhii.

• Marginal note:Jurisdiction — regional panels

  (2) A regional panel of the Board shall exercise

  • (a) the powers and duties referred to in subsection (1) in respect of a use of land or waters or a deposit of waste that is to take place, and that is likely to have an impact, wholly within the management area of the regional panel; and

  • (b) the powers conferred by sections 78, 79 and 79.2 to 80.1 on the board established under Part 3 for that management area.

Marginal note:Applications to Board

• 103 (1) An application shall be made to the Board where the application relates to a use of land or waters or a deposit of waste

  • (a) that is to take place, or is likely to have an impact, in more than one management area, or in a management area and an area outside any management area; or

  • (b) that is to take place wholly outside any management area.

• Marginal note:Applications to regional panel

  (2) An application relating to a use of land or waters or a deposit of waste described in subsection 102(2), including an application relating to a licence or permit for such a use or deposit issued pursuant to Part 3 before the coming into force of this Part, shall be made to the regional panel of the Board for the management area referred to in that subsection.

• Marginal note:Copies of panel applications

  (3) A regional panel of the Board shall provide the Board with a copy of every application made to the regional panel.

• Marginal note:Referral between Board and panels

  (4) Where the Board determines that an application made to a regional panel of the Board should have been made to the Board, the Board shall dispose of the application, and where it determines that an application made to it should have been made to a regional panel, it shall refer the application to the regional panel for disposition.

• Marginal note:Decisions of regional panels

  (5) For greater certainty, a decision made by a regional panel of the Board on an application is a decision of the Board.

Marginal note:Power of chairperson

104 Applications referred to in subsection 103(1) shall be disposed of by three or more members of the Board designated by the chairperson for that purpose, including at least one of the members appointed to a regional panel — on the nomination of a first nation or by the Tlicho Government — or appointed to the Board following consultation with first nations and the Tlicho Government and at least one of the members of the Board not so appointed.

Marginal note:Acting after expiry of term

• 105 (1) If the chairperson of the Board is of the opinion that it is necessary for a member of the Board to continue to act after the expiry of that member’s term in order for the Board to make a decision in relation to the issuance, amendment, renewal or cancellation of a permit or licence, as the case may be, the chairperson may request in writing that the federal Minister authorize the member to act in relation to that matter until a decision is made. For the purpose of the appointment of a replacement, the office of the member is deemed to be vacant as soon as their term expires.

• Marginal note:Request

  (2) The request shall be made at least two months before the day on which the member’s term expires.

• Marginal note:Deemed acceptance

  (3) If the federal Minister neither accepts nor rejects the request within two months after the day on which it is made, the request is deemed to be accepted.

Marginal note:Board directions

106 The Board may issue directions on general policy matters or on matters concerning the use of land or waters or the deposit of waste that, in the Board’s opinion, require consistent application throughout the Mackenzie Valley.

Marginal note:Requirement to make recommendations

• 106.1 (1) The Board shall, at the request of the federal Minister, make recommendations to the federal Minister with respect to the amendment of this Act or the making or amendment of any instrument under this Act.

• Marginal note:Discretion to make recommendations

  (2) The Board may make recommendations to

  • (a) the Minister responsible for any Act of Parliament regarding the use of land or waters or the deposit of waste, with respect to the amendment of that Act or the making or amendment of any instrument under that Act;

  • (b) the territorial Minister with respect to the amendment of territorial laws regarding the use of land or waters or the deposit of waste;

  • (c) a local government with respect to the amendment of bylaws enacted by that government regarding the use of land or waters or the deposit of waste;

  • (d) the Tlicho Government with respect to the amendment of Tlicho laws regarding the use of Tlicho lands or waters on those lands or a deposit of waste on those lands or in those waters; and

  • (e) the Déline Got’ine Government with respect to the amendment of any Déline law regarding the use of Déline lands or waters on those lands or regarding a deposit of waste on those lands or in those waters.

Cooperation with Other Authorities

Marginal note:Coordination

107 Where a use of land or waters or a deposit of waste proposed by an applicant for a licence or permit is likely to have an impact in an area outside the Mackenzie Valley, whether within or outside the Northwest Territories, the Board may consult any government, aboriginal group or other body responsible for the regulation of such uses or deposits in that area and may, with the approval of the federal Minister, hold joint hearings with or enter into agreements with any of them for the coordination of activities and the avoidance of duplication.

Powers of Governor in Council and Federal Minister

Marginal note:Establishment of additional panels

• 108 (1) The Governor in Council may, on the recommendation of the federal Minister, establish up to two regional panels of the Board in addition to those referred to in subsections 99(2) and (2.1).

• Marginal note:Powers

  (2) The area of the Mackenzie Valley in which such a regional panel has jurisdiction shall be specified by the Governor in Council, following consultation with affected first nations, which area must be wholly outside any management area. Subsections 102(2) and 103(2) to (5) apply in relation to that area with such modifications as are required.

• Marginal note:Appointment

  (3) The members of such a regional panel shall be appointed by the federal Minister and must include one of the members of the Board referred to in paragraph 99(4)(a) and one of the members referred to in paragraph 99(4)(b) or (c).

• Marginal note:Chairperson

  (4) The chairperson of such a regional panel shall be appointed by the federal Minister from persons nominated by a majority of the members of the regional panel.

• Marginal note:Appointment by federal Minister

  (5) If a majority of the members do not nominate a person acceptable to the federal Minister within a reasonable time, the Minister may appoint any person as chairperson.

• Marginal note:Absence or incapacity of chairperson

  (6) A regional panel established under this section may designate a member to act as chairperson during the absence or incapacity of the chairperson or a vacancy in the office of chairperson, and that person may exercise the powers and shall perform the duties of the chairperson while so acting.

• Marginal note:Members of Board

  (7) The chairperson and the members of such a regional panel who are not already members of the Board become members of the Board on their appointment to the regional panel.

• Marginal note:Notice

  (8) A notice of the establishment of a regional panel under this section shall be published in a newspaper circulated in the Mackenzie Valley.

Marginal note:Minister’s functions

109 The federal Minister may exercise the same powers and shall perform the same duties in relation to the Board and its regional panels as are conferred or imposed on the federal Minister in relation to a board established by Part 3.

Powers of Tlicho Government

Marginal note:Policy directions by the Tlicho Government

109.1 The Tlicho Government may exercise the same powers and shall perform the same duties in relation to the Board and the regional panel of the Board referred to in subsection 99(2.1) as those that the Tlicho Government has under section 83 in relation to the Wekeezhii Land and Water Board.

Powers of Déline Got’ine Government

Marginal note:Policy directions by Déline Got’ine Government

109.11 The Déline Got’ine Government may exercise the same powers and shall perform the same duties in relation to the Board and the regional panel of the Board referred to in subsection 99(2) as those that the Déline Got’ine Government has under section 83 in relation to the Sahtu Land and Water Board.

Precedence Relating to Policy Directions

Marginal note:Conflict between policy directions

• 109.2 (1) If there is a conflict between policy directions given by the federal Minister under section 109 and policy directions given by the Tlicho Government under section 109.1, the policy directions under section 109.1 prevail to the extent of the conflict.

• Marginal note:Conflict between legislation and policy directions

  (2) If there is a conflict between policy directions given by the federal Minister under section 109 or by the Tlicho Government under section 109.1 and the provisions of any Act of Parliament, any regulations made under an Act of Parliament or any territorial law, those provisions prevail to the extent of the conflict.

• Marginal note:Conflict between policy directions

  (3) If there is a conflict between policy directions given by the federal Minister under section 109 and policy directions given by the Déline Got’ine Government under section 109.11, the policy directions given under section 109.11 prevail to the extent of the conflict.

• Marginal note:Conflict between legislation and policy directions

  (4) If there is a conflict between policy directions given by the federal Minister under section 109 or by the Déline Got’ine Government under section 109.11 and the provisions of any Act of Parliament, of any regulations made under an Act of Parliament or of any territorial law, those provisions prevail to the extent of the conflict.

Cost Recovery

Marginal note:Regulations apply

109.3 Regulations made under section 90.31 apply to the recovery of amounts and costs relating to the consideration of an application for a licence issued by the Board or for the amendment, renewal or cancellation of a licence as if a reference to “licence” in those regulations were a reference to a licence as defined in subsection 96(1).

Consultations

Marginal note:Regulations apply

109.4 Regulations made under section 90.32 apply to any consultation that is undertaken by any person or entity in relation to the issuance, amendment, renewal, suspension or cancellation of a licence, permit or other authorization by the Board as if a reference to “licence” or “permit” in those regulations were a reference to a licence or permit as defined in subsection 96(1).

Enforcement

Marginal note:Inspector

110 An inspector designated under subsection 84(1) may exercise and shall perform, in relation to the use of land or waters or the deposit of waste, the powers, duties and functions of an inspector under Part 3.

PART 5Mackenzie Valley Environmental Impact Review Board

Interpretation and Application

Marginal note:Definitions

• 111 (1) The following definitions apply in this Part.

  designated regulatory agency

  designated regulatory agency means an agency named in the schedule, referred to in a land claim agreement as an independent regulatory agency. (organisme administratif désigné)

  development

  development means any undertaking, or any part or extension of an undertaking, that is carried out on land or water and includes an acquisition of lands pursuant to the Historic Sites and Monuments Act and measures carried out by a department or agency of government leading to the establishment of a park subject to the Canada National Parks Act or the establishment of a park under a territorial law. (projet de développement)

  environmental assessment

  environmental assessment means an examination of a proposal for a development undertaken by the Review Board pursuant to section 126. (évaluation environnementale)

  environmental impact review

  environmental impact review means an examination of a proposal for a development undertaken by a review panel established under section 132. (étude d’impact)

  follow-up program

  follow-up program means a program for evaluating

  • (a) the soundness of an environmental assessment or environmental impact review of a proposal for a development; and

  • (b) the effectiveness of the mitigative or remedial measures imposed as conditions of approval of the proposal. (programme de suivi)

  impact on the environment

  impact on the environment means any effect on land, water, air or any other component of the environment, as well as on wildlife harvesting, and includes any effect on the social and cultural environment or on heritage resources. (répercussions environnementales ou répercussions sur l’environnement)

  mitigative or remedial measure

  mitigative or remedial measure means a measure for the control, reduction or elimination of an adverse impact of a development on the environment, including a restorative measure. (mesures correctives ou d’atténuation)

  preliminary screening

  preliminary screening means an examination of a proposal for a development undertaken pursuant to section 124. (examen préalable)

  regulatory authority

  regulatory authority, in relation to a development, means a body or person responsible for issuing a licence, permit or other authorization required for the development under any federal or territorial law, but does not include a designated regulatory agency or a local government. (autorité administrative)

  responsible minister

  responsible minister, in relation to a proposal for a development, means any minister of the Crown in right of Canada or of the territorial government having jurisdiction in relation to the development under federal or territorial law. (ministre compétent)

  Review Board

  Review Board means the Mackenzie Valley Environmental Impact Review Board established by subsection 112(1). (Office)

• Marginal note:Application

  (2) This Part applies in respect of developments to be carried out wholly or partly within the Mackenzie Valley and, except for section 142, does not apply in respect of developments wholly outside the Mackenzie Valley.

Marginal note:Federal Minister — powers, duties and functions

111.1 The federal Minister shall exercise the powers and perform the duties and functions of any responsible minister who is a minister of the Crown in right of Canada for the purposes of subsections 130(1) to (3) and sections 131.2, 135 and 137.2.

Establishment of Review Board

Marginal note:Review Board established

• 112 (1) There is hereby established a board to be known as the Mackenzie Valley Environmental Impact Review Board consisting of not less than seven members including a chairperson.

• Marginal note:Nominations by first nations and the Tlicho Government

  (2) One half of the members of the Review Board other than the chairperson shall be persons appointed on the nomination of first nations and the Tlicho Government, including at least one nominated by the Gwich’in First Nation, one nominated by the Sahtu First Nation and one nominated by the Tlicho Government.

• Marginal note:Government members

  (3) Of the members of the Review Board other than the chairperson and those appointed in accordance with subsection (2), at most one half shall be nominated by the territorial Minister.

• Marginal note:Quorum

  (4) A quorum of the Review Board consists of five members, including two of the members appointed in accordance with subsection (2) and two of the members not so appointed other than the chairperson.

Marginal note:Main office

113 The main office of the Review Board shall be at Yellowknife or at such other place in the Mackenzie Valley as is designated by the Governor in Council.

Marginal note:Acting after expiry of term

• 113.1 (1) If the chairperson of the Review Board is of the opinion that it is necessary for a member of the Review Board to continue to act after the expiry of that member’s term in relation to an environmental assessment, an environment impact review or an examination of impact on the environment that stands in lieu of an environmental impact review, as the case may be, of a proposal for a development, the chairperson may request in writing that the federal Minister authorize the member to act in relation to that proposal until the requirements of this Part in relation to that environmental assessment, environmental impact review or examination have been fulfilled. For the purpose of the appointment of a replacement, the office of the member is deemed to be vacant as soon as their term expires.

• Marginal note:Request

  (2) The request shall be made at least two months before the day on which the member’s term expires.

• Marginal note:Deemed acceptance

  (3) If the federal Minister neither accepts nor rejects the request within two months after the day on which it is made, the request is deemed to be accepted.

General Provisions

Marginal note:Purposes

114 The purpose of this Part is to establish a process comprising a preliminary screening, an environmental assessment and an environmental impact review in relation to proposals for developments, and

• (a) to establish the Review Board as the main instrument in the Mackenzie Valley for the environmental assessment and environmental impact review of developments;

• (b) to ensure that the impact on the environment of proposed developments receives careful consideration before actions are taken in connection with them; and

• (c) to ensure that the concerns of aboriginal people and the general public are taken into account in that process.

Marginal note:Guiding principles

• 115 (1) The process established by this Part shall be carried out in a timely and expeditious manner and shall have regard to

  • (a) the protection of the environment from the significant adverse impacts of proposed developments;

  • (b) the protection of the social, cultural and economic well-being of residents and communities in the Mackenzie Valley; and

  • (c) the importance of conservation to the well-being and way of life of the aboriginal peoples of Canada to whom section 35 of the Constitution Act, 1982 applies and who use an area of the Mackenzie Valley.

• Marginal note:Consideration of previous assessment activities

  (2) A person or body conducting a preliminary screening, an environmental assessment, an environmental impact review or an examination of impacts on the environment that stands in lieu of an environmental impact review in respect of a proposed development shall consider, and may rely on, any assessment activities previously carried out under this Part in respect of that development.

Marginal note:Considerations

115.1 In exercising its powers, the Review Board shall consider any traditional knowledge and scientific information that is made available to it.

Marginal note:Impact Assessment Act

116 The Impact Assessment Act does not apply in the Mackenzie Valley in respect of proposals for developments other than

• (a) proposals referred to the Minister of the Environment pursuant to paragraph 130(1)(c), to the extent provided by that Act; or

• (b) proposals that are the subject of agreements referred to in paragraph 141(2)(a) or (3)(b), to the extent provided by such agreements.

Marginal note:Scope of developments

• 117 (1) Every environmental assessment of a proposal for a development shall include a determination by the Review Board of the scope of the development, subject to any guidelines made under section 120.

• Marginal note:Factors to be considered

  (2) Every environmental assessment and environmental impact review of a proposal for a development shall include a consideration of

  • (a) the impact of the development on the environment, including the impact of malfunctions or accidents that may occur in connection with the development and any cumulative impact that is likely to result from the development in combination with other developments;

  • (b) the significance of any such impact;

  • (c) any comments submitted by members of the public in accordance with the regulations or the rules of practice and procedure of the Review Board;

  • (d) where the development is likely to have a significant adverse impact on the environment, the need for mitigative or remedial measures; and

  • (e) any other matter, such as the need for the development and any available alternatives to it, that the Review Board or any responsible minister, after consulting the Review Board, determines to be relevant.

• Marginal note:Additional factors

  (3) An environmental impact review of a proposal for a development shall also include a consideration of

  • (a) the purpose of the development;

  • (b) alternative means, if any, of carrying out the development that are technically and economically feasible, and the impact on the environment of such alternative means;

  • (c) the need for any follow-up program and the requirements of such a program; and

  • (d) the capacity of any renewable resources that are likely to be significantly affected by the development to meet existing and future needs.

• Marginal note:Joint panels

  (4) Subsections (2) and (3) apply in respect of an examination of a proposal for a development by a review panel, or a joint panel, established jointly by the Review Board and any other person or body.

Marginal note:Issuance of licence, permit or other authorization

• 118 (1) A licence, permit or other authorization required for the carrying out of a development shall not be issued under any federal, territorial, Tlicho or Déline law unless the requirements of this Part have been complied with in relation to the development.

• Marginal note:Requirements

  (2) If the Gwich’in or Sahtu First Nation, the Tlicho Government, the Déline Got’ine Government, a local government or a department or agency of the federal or territorial government proposes to carry out a development that does not require a licence, permit or other authorization under any federal, territorial, Tlicho or Déline law, it shall comply with the requirements of this Part before taking any irrevocable action in relation to the development.

Marginal note:Emergencies excluded

119 No preliminary screening, environmental assessment or environmental impact review is required to be conducted in relation to a proposal for a development

• (a) that is carried out in response to a national emergency for which special temporary measures are being taken under the Emergencies Act; or

• (b) that is carried out in response to an emergency in circumstances such that it is in the interest of protecting property or the environment or in the interest of public welfare, health or safety to carry out the proposal forthwith.

Marginal note:Guidelines

120 Following consultation with first nations, the Tlicho Government and the federal and territorial Ministers and subject to any regulations made under paragraph 143(1)(a), the Review Board may establish guidelines respecting the process established by this Part, including guidelines

• (a) for the determination of the scope of developments by the Review Board;

• (b) for the form and content of reports made under this Part; and

• (c) for the submission and distribution of environmental impact statements and for public notification of such submission pursuant to paragraphs 134(1)(b) and (c).

Marginal note:Written reasons

121 The Review Board, a review panel of the Review Board, a review panel or a joint panel established jointly by the Review Board and any other person or body, the federal Minister, a responsible minister, a designated regulatory agency, a regulatory authority, a department or agency of the federal or territorial government, a local government, the Gwich’in or Sahtu First Nation, the Tlicho Government or the Déline Got’ine Government shall issue and make available to the public written reasons for any decision or recommendation made under the process established by this Part.

Marginal note:Delegation by federal Minister

122 The federal Minister may, in relation to a proposed development, delegate to any responsible minister the federal Minister’s duty to distribute reports made under this Part, to participate in decisions made following the consideration of such reports and to distribute decisions so made.

Marginal note:Exercise of powers under other Acts

123 For greater certainty, the Review Board may exercise any function conferred on it by or under any Act of Parliament or delegated to it under any Act of Parliament.

Marginal note:Consultation

123.1 In conducting a review or examination of the impact on the environment of a development, a review panel of the Review Board or a review panel, or a joint panel, established jointly by the Review Board and any other person or body,

• (a) shall carry out any consultations that are required by any of the land claim agreements; and

• (b) may carry out other consultations with any persons who use an area where the development might have an impact on the environment.

Marginal note:Conflict of interest

• 123.2 (1) A person shall not be appointed, or continue, as a member of a review panel of the Review Board or of a review panel, or a joint panel, established jointly by the Review Board and any other person or body, if doing so would place the member in a material conflict of interest.

• Marginal note:Status or entitlements under agreement

  (2) A person is not placed in a material conflict of interest merely because of any status or entitlement conferred on the person under the Gwich’in Agreement, the Sahtu Agreement, the Tlicho Agreement or any other agreement between a first nation and Her Majesty in right of Canada for the settlement of a claim to lands or under the Déline Agreement.

Marginal note:Nominations

123.3 In appointing a review panel of the Review Board or a review panel, or a joint panel, established jointly by the Review Board and any other person or body, the Review Board and those other persons or bodies shall comply with the requirements of land claim agreements respecting nominations for appointment.

Preliminary Screening

Marginal note:Application to regulator

• 124 (1) Where, pursuant to any federal or territorial law specified in the regulations made under paragraph 143(1)(b), an application is made to a regulatory authority or designated regulatory agency for a licence, permit or other authorization required for the carrying out of a development, the authority or agency shall notify the Review Board in writing of the application and conduct a preliminary screening of the proposal for the development, unless the development is exempted from preliminary screening because

  • (a) its impact on the environment is declared to be insignificant by regulations made under paragraph 143(1)(c); or

  • (b) an examination of the proposal is declared to be inappropriate for reasons of national security by those regulations.

• Marginal note:Proposal not requiring application

  (2) Where a development that does not require a licence, permit or other authorization under any federal or territorial law is proposed to be carried out by a department or agency of the federal or territorial government or by the Gwich’in or Sahtu First Nation or the Tlicho Government, the body proposing to carry out that development shall, after notifying the Review Board in writing of the proposal for the development, conduct a preliminary screening of the proposal, unless

  • (a) in its opinion, the impact of the development on the environment will be manifestly insignificant; or

  • (b) the development is exempted from preliminary screening for a reason referred to in paragraph (1)(a) or (b).

• Marginal note:Preliminary screening by Gwich’in, Sahtu or Tlicho

  (3) The Gwich’in First Nation, the Sahtu First Nation or the Tlicho Government, as the case may be, may conduct a preliminary screening of a proposal for a development to determine whether to refer the proposal for an environmental assessment in accordance with paragraph 126(2)(b) or (c).

• Marginal note:Cooperation

  (4) Where more than one body conducts a preliminary screening in respect of a development, any of them may consult the others, adopt another’s report or participate in a joint preliminary screening and, where one of them is a board established under Part 3 or 4, the others are not required to conduct a preliminary screening.

Marginal note:Outside local government territory

• 125 (1) Except as provided by subsection (2), a body that conducts a preliminary screening of a proposal shall

  • (a) determine and report to the Review Board whether, in its opinion, the development might have a significant adverse impact on the environment or might be a cause of public concern; and

  • (b) where it so determines in the affirmative, refer the proposal to the Review Board for an environmental assessment.

• Marginal note:Delay

  (1.1) If the body determines under subsection (1) that the development will not have a significant adverse impact on the environment and will not be a cause of public concern,

  • (a) a regulatory authority, a designated regulatory agency or the Tlicho Government shall not issue a licence, permit or other authorization for the development before the end of 10 days after the day on which the Review Board receives the report of the determination; or

  • (b) if no licence, permit or other authorization is required under any federal, territorial or Tlicho law for the development, the person or body that proposes to carry it out shall not proceed before the end of 10 days after the day on which the Review Board receives the report of the determination.

• Marginal note:Boards established under Part 3 or 4

  (1.2) If a board established under Part 3 or 4 is the body that determines under subsection (1) that the development will not have a significant adverse impact on the environment and will not be a cause of public concern, that board may issue a licence, permit or other authorization for the development before the end of 10 days after the day on which the Review Board receives the report of the determination but that licence, permit or other authorization shall come into force only after the end of that 10-day period and if no referral under subsection 126(2) or (3) has been made during that period.

• Marginal note:Computation of time

  (1.3) If more than one body conducts a preliminary screening in respect of a development and they each determine that the development will not have a significant adverse impact on the environment and will not be a cause of public concern, the 10-day period referred to in subsections (1.1) and (1.2) begins after the day on which the Review Board receives the last of their reports of determination.

• Marginal note:Within local government territory

  (2) Where a proposed development is wholly within the boundaries of a local government, a body that conducts a preliminary screening of the proposal shall

  • (a) determine and report to the Review Board whether, in its opinion, the development is likely to have a significant adverse impact on air, water or renewable resources or might be a cause of public concern; and

  • (b) where it so determines in the affirmative, refer the proposal to the Review Board for an environmental assessment.

• Marginal note:Delay

  (3) If a body determines under subsection (2) that the development is unlikely to have a significant adverse impact on air, water or renewable resources and will not be a cause of public concern,

  • (a) a regulatory authority, a designated regulatory agency or the Tlicho Government shall not issue a licence, permit or other authorization for the development before the end of 10 days after the day on which the Review Board receives the report of the determination; or

  • (b) if no licence, permit or other authorization is required under any federal, territorial or Tlicho law for the development, the person or body that proposes to carry it out shall not proceed before the end of 10 days after the day on which the Review Board receives the report of the determination.

• Marginal note:Boards established under Part 3 or 4

  (4) If a board established under Part 3 or 4 is the body that determines under subsection (2) that the development is unlikely to have a significant adverse impact on air, water or renewable resources and will not be a cause of public concern, that board may issue a licence, permit or other authorization for the development before the end of 10 days after the day on which the Review Board receives the report of the determination but that licence, permit or other authorization shall come into force only after the end of that 10-day period and if no referral under subsection 126(2) or (3) has been made during that period.

• Marginal note:Computation of time

  (5) If more than one body conducts a preliminary screening in respect of a development and they each determine that the development is unlikely to have a significant adverse impact on air, water or renewable resources and will not be a cause of public concern, the 10-day period referred to in subsections (3) and (4) begins after the day on which the Review Board receives the last of their reports of determination.

• Marginal note:Copy of report

  (6) A body that conducts a preliminary screening of a proposal shall provide a copy of its report to the person or body that proposes to carry out the development.

Environmental Assessment

Marginal note:Referral on preliminary screening

• 126 (1) The Review Board shall conduct an environmental assessment of a proposal for a development that is referred to the Review Board following a preliminary screening pursuant to section 125.

• Marginal note:Referral from department, agency, first nation or local government

  (2) Notwithstanding any determination on a preliminary screening, the Review Board shall conduct an environmental assessment of a proposal for a development that is referred to it by

  • (a) a regulatory authority, designated regulatory agency or department or agency of the federal or territorial government;

  • (b) the Gwich’in or Sahtu First Nation, in the case of a development to be carried out in its settlement area or a development that might have an impact on the environment in that settlement area;

  • (c) the Tlicho Government, in the case of a development to be carried out wholly or partly in the part of Monfwi Gogha De Niitlee that is in the Northwest Territories or a development that might have an impact on the environment in that part; or

  • (d) a local government, in the case of a development to be carried out within its boundaries or a development that might have an impact on the environment within its boundaries.

• Marginal note:Review Board’s own motion

  (3) Notwithstanding any determination on a preliminary screening, the Review Board may conduct an environmental assessment of a proposal for a development on its own motion.

• Marginal note:For greater certainty

  (4) For greater certainty, subsections (2) and (3) apply even if a preliminary screening has not been commenced or, if commenced, has not been completed.

• Marginal note:Notice

  (5) The Review Board shall give notice of a referral of a proposal under subsection (2), or of its decision to conduct an environmental assessment under subsection (3), to the person or body that proposes to carry out the development.

Marginal note:Application of EARP Order and CEAA

127 In an environmental assessment of a proposal for a development, the Review Board shall take into account any report made in relation to that proposal before the coming into force of this Part pursuant to the Environmental Assessment and Review Process Guidelines Order, approved by Order in Council P.C. 1984-2132 of June 21, 1984, and registered as SOR/84-467, or pursuant to the Canadian Environmental Assessment Act.

Marginal note:Consultation

127.1 Before completing an environmental assessment of a proposal for a development that is to be carried out wholly or partly on first nation lands as defined in section 51 or on Tlicho lands, the Review Board shall consult the first nation on whose lands the development is to be carried out or, if the development is to be carried out on Tlicho lands, the Tlicho Government.

Marginal note:Assessment by Review Board

• 128 (1) On completing an environmental assessment of a proposal for a development, the Review Board shall,

  • (a) where the development is not likely in its opinion to have any significant adverse impact on the environment or to be a cause of significant public concern, determine that an environmental impact review of the proposal need not be conducted;

  • (b) where the development is likely in its opinion to have a significant adverse impact on the environment,

    • (i) order that an environmental impact review of the proposal be conducted, subject to paragraph 130(1)(c), or

    • (ii) recommend that the approval of the proposal be made subject to the imposition of such measures as it considers necessary to prevent the significant adverse impact;

  • (c) where the development is likely in its opinion to be a cause of significant public concern, order that an environmental impact review of the proposal be conducted, subject to paragraph 130(1)(c); and

  • (d) where the development is likely in its opinion to cause an adverse impact on the environment so significant that it cannot be justified, recommend that the proposal be rejected without an environmental impact review.

• Marginal note:Review Board’s report

  (2) The Review Board shall, within nine months after the day on which a proposal is referred to it under section 125 or subsection 126(2) or the day on which it starts to conduct an assessment under subsection 126(3), complete its environmental assessment and make a report of that assessment to

  • (a) the federal Minister, who shall distribute it to every responsible minister;

  • (b) any designated regulatory agency from which a licence, permit or other authorization is required for the carrying out of the development; and

  • (c) if the development is to be carried out wholly or partly on Tlicho lands, the Tlicho Government.

• Marginal note:Time limit — hearings

  (2.1) If the Review Board holds a public hearing during the conduct of the environmental assessment, the time limit referred to in subsection (2) is extended to 16 months.

• Marginal note:Extension of time limit by federal Minister

  (2.2) The federal Minister may, at the request of the Review Board, extend the time limit referred to in subsection (2) or (2.1) by a maximum of two months to take into account circumstances that are specific to the proposal.

• Marginal note:Extension of time limit by Governor in Council

  (2.3) The Governor in Council may, on the recommendation of the federal Minister, further extend the time limit extended under subsection (2.2) any number of times.

• Marginal note:Excluded period

  (2.4) If the Review Board requires the person or body that proposes to carry out the development to provide information, or collect information or undertake a study with respect to the development, then the period that is taken by that person or body, in the Review Board’s opinion, to comply with the requirement is not included in the calculation of the time limit or of its extension.

• Marginal note:Copies of report

  (3) The Review Board shall provide a copy of its report to any body that conducted a preliminary screening of the proposal, to any body that referred the proposal to the Review Board under subsection 126(2) and to the person or body that proposes to carry out the development.

• Marginal note:Areas identified

  (4) The Review Board shall identify in its report any area within or outside the Mackenzie Valley in which the development is likely, in its opinion, to have a significant adverse impact or to be a cause of significant public concern and specify the extent to which that area is affected.

Marginal note:Delay

129 Where the Review Board makes a determination under paragraph 128(1)(a),

• (a) a regulatory authority, a designated regulatory agency or the Tlicho Government shall not issue a licence, permit or other authorization for the development, and

• (b) where no licence, permit or authorization is required under any federal, territorial or Tlicho law for the development, the person or body that proposes to carry it out shall not proceed,

before the expiration of ten days after receiving the report of the Review Board.

Marginal note:Decision by ministers

• 130 (1) After considering the report of an environmental assessment, the federal Minister and the responsible ministers to whom the report was distributed may agree

  • (a) to order an environmental impact review of a proposal, notwithstanding a determination under paragraph 128(1)(a);

  • (b) where a recommendation is made under subparagraph 128(1)(b)(ii) or paragraph 128(1)(d),

    • (i) to adopt the recommendation or refer it back to the Review Board for further consideration, or

    • (ii) after consulting the Review Board, to adopt the recommendation with modifications or reject it and order an environmental impact review of the proposal; or

  • (c) irrespective of the determination in the report, to refer the proposal to the Minister of the Environment, following consultation with that Minister, for the purpose of a joint review under the Impact Assessment Act, if the federal Minister and the responsible ministers determine that it is in the national interest to do so.

• Marginal note:Consultation

  (1.1) Before making an order under paragraph (1)(a) or a referral under paragraph (1)(c), the federal Minister and the responsible ministers shall consult

  • (a) the Gwich’in First Nation, if the development is to be carried out wholly or partly on its first nation lands, as defined in section 51;

  • (b) the Sahtu First Nation, if the development is to be carried out wholly or partly on its first nation lands, as defined in section 51; and

  • (c) the Tlicho Government, if the development is to be carried out wholly or partly on Tlicho lands.

• Marginal note:Areas identified

  (2) Where an environmental impact review of a proposal is ordered under subsection (1), the federal Minister and responsible ministers shall identify any area within or outside the Mackenzie Valley in which the development is likely, in their opinion, to have a significant adverse impact or to be a cause of significant public concern and specify the extent to which that area is affected.

• Marginal note:Additional information

  (3) If the federal Minister and responsible ministers consider any new information that was not before the Review Board, or any matter of public concern not referred to in the Review Board’s reasons, the new information or matter shall be identified in the decision made under this section and in any consultation under paragraph (1)(b).

• Marginal note:Distribution of decision

  (4) The federal Minister shall distribute a decision made under this section to the Review Board and to every first nation, local government, regulatory authority and department and agency of the federal or territorial government affected by the decision.

• Marginal note:Time limits

  (4.01) The federal Minister shall distribute a decision made under this section within three months after the day on which the federal Minister receives the Review Board’s report of an environmental assessment.

• Marginal note:Time limit — hearings

  (4.02) If the Review Board holds a public hearing during the conduct of the environmental assessment, the time limit referred to in subsection (4.01) is extended to five months.

• Marginal note:Extension of time limit by federal Minister

  (4.03) The federal Minister may extend the time limit referred to in subsection (4.01) or (4.02) by a maximum of two months to take into account circumstances that are specific to the proposal.

• Marginal note:Extension of time limit by Governor in Council

  (4.04) The Governor in Council may, on the recommendation of the federal Minister, further extend the time limit extended under subsection (4.03) any number of times.

• Marginal note:Time limit — further consideration

  (4.05) If a recommendation is referred back to the Review Board for further consideration under subparagraph (1)(b)(i), the time taken for that referral and consideration is included in the calculation of the time limit set out in subsection (4.01) or (4.02) or of its extension.

• Marginal note:Excluded period

  (4.06) If the federal Minister or the Review Board requires the person or body that proposes to carry out the development to provide information, or collect information or undertake a study with respect to the development, then the period that is taken by that person or body, in the federal Minister’s or the Review Board’s opinion, as the case may be, to comply with the requirement is not included in the calculation of the time limit under subsection (4.01) or (4.02) or of its extension.

• Marginal note:Notification — paragraph (1)(c)

  (4.07) If, following an order by the Review Board that an environmental impact review of a proposal be conducted, the federal Minister and the responsible ministers do not refer a proposal to the Minister of the Environment under paragraph (1)(c), the federal Minister shall so advise the Review Board in writing within three months after the day on which the federal Minister receives the Review Board’s report of an environmental assessment.

• Marginal note:Time limit — hearings

  (4.08) If the Review Board holds a public hearing during the conduct of the environmental assessment, the time limit referred to in subsection (4.07) is extended to five months.

• Marginal note:Extension of time limit by federal Minister

  (4.09) The federal Minister may extend the time limit referred to in subsection (4.07) or (4.08) by a maximum of two months to take into account circumstances that are specific to the proposal.

• Marginal note:Extension of time limit by Governor in Council

  (4.1) The Governor in Council may, on the recommendation of the federal Minister, further extend the time limit extended under subsection (4.09) any number of times.

• Marginal note:Effect of decision

  (5) The federal Minister and responsible ministers shall carry out a decision made under this section to the extent of their respective authorities. A first nation, local government, regulatory authority or department or agency of the federal or territorial government affected by a decision made under this section shall act in conformity with the decision to the extent of their respective authorities.

Marginal note:Decision by designated agency

• 131 (1) A designated regulatory agency shall, after considering a report of the Review Board containing a recommendation made under subparagraph 128(1)(b)(ii) or paragraph 128(1)(d),

  • (a) adopt the recommendation or refer it back to the Review Board for further consideration; or

  • (b) after consulting the Review Board, adopt the recommendation with modifications or reject it and order an environmental impact review of the proposal.

• Marginal note:Time limit

  (1.1) The designated regulatory agency shall make a decision under subsection (1) within three months after the day on which the agency receives the Review Board’s report of an environmental assessment.

• Marginal note:Time limit — hearings

  (1.2) If the Review Board holds a public hearing during the conduct of the environmental assessment, the time limit referred to in subsection (1.1) is extended to five months.

• Marginal note:Extension of time limit by designated regulatory agency

  (1.3) The designated regulatory agency may extend the time limit referred to in subsection (1.1) or (1.2) by a maximum of two months to take into account circumstances that are specific to the proposal.

• Marginal note:Extension of time limit by Governor in Council

  (1.4) The Governor in Council may, on the recommendation of the Minister responsible for the designated regulatory agency, further extend the time limit extended under subsection (1.3) any number of times.

• Marginal note:Time limit — further consideration

  (1.5) If a recommendation is referred back to the Review Board for further consideration under paragraph (1)(a), the time taken for that referral and consideration is included in the calculation of the time limit set out in subsection (1.1) or (1.2) or of its extension.

• Marginal note:Excluded period

  (1.6) If the designated regulatory agency or the Review Board requires the person or body that proposes to carry out the development to provide information, or collect information or undertake a study with respect to the development, then the period that is taken by that person or body, in the designated regulatory agency’s or the Review Board’s opinion, as the case may be, to comply with the requirement is not included in the calculation of the time limit under subsection (1.1) or (1.2) or of its extension.

• Marginal note:Effect of decision

  (2) A designated regulatory agency shall carry out, to the extent of its authority, any recommendation that it adopts.

• Marginal note:Areas identified

  (3) Where an environmental impact review of a proposal is ordered under subsection (1), the designated regulatory agency shall identify any area within or outside the Mackenzie Valley in which the development is likely, in its opinion, to have a significant adverse impact or to be a cause of significant public concern and specify the extent to which that area is affected.

• Marginal note:Additional information

  (4) If a designated regulatory agency considers any new information that was not before the Review Board, or any matter of public concern that was not referred to in the Review Board’s reasons, the new information or matter shall be identified in the decision made under this section and in any consultation under paragraph (1)(b).

Marginal note:Decision by Tlicho Government

• 131.1 (1) If a development is to be carried out wholly or partly on Tlicho lands, the Tlicho Government shall, after considering a report of the Review Board containing a recommendation made under subparagraph 128(1)(b)(ii),

  • (a) adopt the recommendation or refer it back to the Review Board for further consideration; or

  • (b) after consulting the Review Board, adopt the recommendation with modifications or reject it.

• Marginal note:Effect of decision

  (2) The Tlicho Government shall carry out, to the extent of its authority, any recommendation that it adopts.

• Marginal note:Additional information

  (3) If the Tlicho Government considers any new information that was not before the Review Board, or any matter of public concern that was not referred to in the Review Board’s reasons, the new information or matter shall be identified in the decision made under this section and in any consultation under paragraph (1)(b).

Marginal note:Conservation

131.2 In making a decision under paragraph 130(1)(b) or subsection 131(1) or 131.1(1), the federal Minister and the responsible ministers, a designated regulatory agency or the Tlicho Government, as the case may be, shall consider the importance of the conservation of the lands, waters and wildlife of the Mackenzie Valley on which the development might have an impact.

Environmental Impact Review

Marginal note:Appointment of review panel

• 132 (1) Subject to sections 138 to 141, an environmental impact review of a proposal for a development shall be conducted by a review panel consisting of three or more members appointed by the Review Board, including a chairperson.

• Marginal note:Expert members

  (2) A review panel may, in addition to members of the Review Board, include as members of the panel persons having particular expertise related to the development.

• Marginal note:Board members to participate in appointments

  (3) The members of the Review Board who participate in the appointment of a review panel must include in equal numbers

  • (a) members who were appointed on the nomination of a first nation or the Tlicho Government; and

  • (b) members not so appointed, other than the chairperson.

• Marginal note:Time limit

  (4) The Review Board shall appoint members to a review panel within three months after the day on which the Review Board is advised, as the case may be,

  • (a) of an order for an environmental impact review under paragraph 130(1)(a), subparagraph 130(1)(b)(ii) or paragraph 131(1)(b); or

  • (b) in accordance with subsection 130(4.07), that the proposal has not been referred to the Minister of the Environment.

• Marginal note:Extension of time limit by federal Minister

  (5) The federal Minister may, at the request of the Review Board, extend the time limit referred to in subsection (4) by a maximum of two months to take into account circumstances that are specific to the proposal.

• Marginal note:Extension of time limit by Governor in Council

  (6) The Governor in Council may, on the recommendation of the federal Minister, further extend the time limit extended under subsection (5) any number of times.

• Marginal note:Excluded period

  (7) If the Review Board requires the person or body that proposes to carry out the development to provide information, or collect information or undertake a study with respect to the development, then the period that is taken by that person or body, in the Board’s opinion, to comply with the requirement is not included in the calculation of the time limit under subsection (4) or of its extension.

Marginal note:Powers and duties of panel

• 133 (1) A review panel may exercise the powers and shall perform the duties of the Review Board in the conduct of an environmental impact review.

• Marginal note:Instructions

  (2) A review panel may issue, with respect to an impact statement referred to in paragraph 134(1)(b), special instructions not inconsistent with any guidelines issued under section 120.

Marginal note:Coordination

133.1 The Review Board shall to the extent possible coordinate any environmental impact review conducted by a review panel of a proposal for a development that, as determined by the Review Board, is to be carried out partly outside the Mackenzie Valley with any examination of the environmental impact of that development conducted by another authority responsible for the examination of environmental effects of the part of the development to be carried out outside the Mackenzie Valley.

Marginal note:Components of review

• 134 (1) An environmental impact review of a proposal for a development includes

  • (a) the preparation by the Review Board of terms of reference for the review panel, after consultation with the responsible ministers, with any first nation affected by the proposal and, if the Board has determined that the development is likely to have a significant adverse impact on the environment, or to be a cause of significant public concern, in Monfwi Gogha De Niitlee, with the Tlicho Government;

  • (b) the submission of an impact statement by the applicant for a licence, permit or other authorization or such other person or body as proposes to carry out the development, and its distribution in accordance with any guidelines issued under section 120 and any special instructions issued under subsection 133(2);

  • (c) public notification, in accordance with any such guidelines, of the submission of the impact statement;

  • (d) such analysis of the proposal as the review panel considers appropriate; and

  • (e) public consultations or hearings in communities that will be affected by the development.

• Marginal note:Time limit — terms of reference

  (1.1) The Review Board shall fix the terms of reference for the review panel within three months after the day on which the Review Board is advised, as the case may be,

  • (a) of an order for an environmental impact review under paragraph 130(1)(a), subparagraph 130(1)(b)(ii) or paragraph 131(1)(b); or

  • (b) in accordance with subsection 130(4.07), that the proposal has not been referred to the Minister of the Environment.

• Marginal note:Extension of time limit by federal Minister

  (1.2) The federal Minister may, at the request of the Review Board, extend the time limit referred to in subsection (1.1) by a maximum of two months to take into account circumstances that are specific to the proposal.

• Marginal note:Extension of time limit by Governor in Council

  (1.3) The Governor in Council may, on the recommendation of the federal Minister, further extend the time limit extended under subsection (1.2) any number of times.

• Marginal note:Excluded period

  (1.4) If the Review Board requires the person or body that proposes to carry out the development to provide information, or collect information or undertake a study with respect to the development, then the period that is taken by that person or body, in the Board’s opinion, to comply with the requirement is not included in the calculation of the time limit under subsection (1.1) or of its extension.

• Marginal note:Report

  (2) A review panel shall issue a report containing a summary of comments received from the public, an account of the panel’s analysis, the conclusions of the panel and its recommendation whether the proposal for the development be approved, with or without mitigative or remedial measures or a follow-up program, or rejected.

• Marginal note:Review panel’s report

  (3) Within 15 months after the first day on which both the members of the panel are appointed and the terms of reference are established, the report of a review panel shall be submitted to

  • (a) the federal Minister, who shall distribute it to every responsible minister;

  • (b) any designated regulatory agency from which a licence, permit or other authorization is required for the carrying out of the development; and

  • (c) the Tlicho Government, if the development is to be carried out wholly or partly on Tlicho lands.

• Marginal note:Extension of time limit by federal Minister

  (4) The federal Minister may, at the request of the review panel, extend the time limit referred to in subsection (3) by a maximum of two months to take into account circumstances that are specific to the proposal.

• Marginal note:Extension of time limit by Governor in Council

  (5) The Governor in Council may, on the recommendation of the federal Minister, further extend the time limit extended under subsection (4) any number of times.

• Marginal note:Excluded period

  (6) If the review panel requires the person or body that proposes to carry out the development to provide information, or collect information or undertake a study with respect to the development, then the period that is taken by that person or body, in the review panel’s opinion, to comply with the requirement is not included in the calculation of the time limit under subsection (3) or of its extension.

• Marginal note:Copy of report

  (7) A copy of the report of a review panel shall be provided to

  • (a) the Gwich’in First Nation, if the development is to be carried out wholly or partly on its first nation lands, as defined in section 51; and

  • (b) the Sahtu First Nation, if the development is to be carried out wholly or partly on its first nation lands, as defined in section 51.

Marginal note:Consideration of report by ministers

• 135 (1) After considering the report of a review panel, the federal Minister and responsible ministers to whom the report was distributed may agree to

  • (a) adopt the recommendation of the review panel or refer it back to the panel for further consideration; or

  • (b) after consulting the review panel, adopt the recommendation with modifications or reject it.

• Marginal note:Additional information

  (2) If the federal Minister and responsible ministers consider any new information that was not before the review panel, or any matter of public concern not referred to in the panel’s reasons, the new information or the matter shall be identified in the decision made under this section and in their consultations under paragraph (1)(b).

Marginal note:Distribution of decision

• 136 (1) The federal Minister shall distribute a decision under section 135 to every first nation, local government, regulatory authority and department or agency of the territorial or federal government affected by the decision.

• Marginal note:Time limits

  (1.1) The federal Minister shall distribute the decision within six months after the day on which the federal Minister received the review panel’s report.

• Marginal note:Extension of time limit by federal Minister

  (1.2) The federal Minister may extend the time limit referred to in subsection (1.1) by a maximum of two months to take into account circumstances that are specific to the proposal.

• Marginal note:Extension of time limit by Governor in Council

  (1.3) The Governor in Council may, on the recommendation of the federal Minister, further extend the time limit extended under subsection (1.2) any number of times.

• Marginal note:Time limit — further consideration

  (1.4) If a recommendation is referred back to the review panel for further consideration under paragraph 135(1)(a), the time taken for that referral and consideration is included in the calculation of the time limit set out in subsection (1.1) or of its extension.

• Marginal note:Excluded period

  (1.5) If the federal Minister or the review panel requires the person or body that proposes to carry out the development to provide information, or collect information or undertake a study with respect to the development, then the period that is taken by that person or body, in the federal Minister’s or the review panel’s opinion, as the case may be, to comply with the requirement is not included in the calculation of the time limit under subsection (1.1) or of its extension.

• Marginal note:Effect of decision

  (2) The federal Minister and responsible ministers shall carry out a decision made under section 135 to the extent of their respective authorities. A first nation, local government, regulatory authority or department or agency of the federal or territorial government affected by a decision under that section shall act in conformity with the decision to the extent of their respective authorities.

Marginal note:Consideration of report by agencies

• 137 (1) A designated regulatory agency shall, after considering the report of a review panel,

  • (a) adopt the recommendation of the review panel or refer it back to the panel for further consideration; or

  • (b) after consulting the review panel, adopt the recommendation with modifications or reject it.

• Marginal note:Time limits

  (1.1) The designated regulatory agency shall make a decision under subsection (1) within six months after the day on which it receives the review panel’s report.

• Marginal note:Extension of time limit by designated regulatory agency

  (1.2) The designated regulatory agency may extend the time limit referred to in subsection (1.1) by a maximum of two months to take into account circumstances that are specific to the proposal.

• Marginal note:Extension of time limit by Governor in Council

  (1.3) The Governor in Council may, on the recommendation of the Minister responsible for the designated regulatory agency, further extend the time limit extended under subsection (1.2) any number of times.

• Marginal note:Time limit — further consideration

  (1.4) If a recommendation is referred back to the review panel for further consideration under paragraph (1)(a), the time taken for that referral and consideration is included in the calculation of the time limit set out in subsection (1.1) or of its extension.

• Marginal note:Excluded period

  (1.5) If the designated regulatory agency or the review panel requires the person or body that proposes to carry out the development to provide information, or collect information or undertake a study with respect to the development, then the period that is taken by that person or body, in the designated regulatory agency’s or the review panel’s opinion, as the case may be, to comply with the requirement is not included in the calculation of the time limit under subsection (1.1) or of its extension.

• Marginal note:Additional information

  (2) If a designated regulatory agency considers any new information that was not before the review panel, or any matter of public concern that was not referred to in the panel’s reasons, such new information or such matter shall be identified in the decision of the agency and in any consultation under paragraph (1)(b).

• Marginal note:Effect of decision

  (3) A designated regulatory agency shall carry out, to the extent of its authority, any recommendation that it adopts.

Marginal note:Decision by Tlicho Government

• 137.1 (1) If a development is to be carried out wholly or partly on Tlicho lands, the Tlicho Government shall, after considering the report of a review panel,

  • (a) adopt the recommendation of the review panel or refer it back to the panel for further consideration; or

  • (b) after consulting the review panel, adopt the recommendation with modifications or reject it.

• Marginal note:Additional information

  (2) If the Tlicho Government considers any new information that was not before the review panel, or any matter of public concern that was not referred to in the review panel’s reasons, the new information or matter shall be identified in the decision made under this section and in any consultation under paragraph (1)(b).

• Marginal note:Effect of decision

  (3) The Tlicho Government shall carry out, to the extent of its authority, any recommendation that it adopts.

Marginal note:Conservation

137.2 In making a decision under subsection 135(1), 137(1) or 137.1(1), the federal Minister and the responsible ministers, a designated regulatory agency or the Tlicho Government, as the case may be, shall consider the importance of the conservation of the lands, waters and wildlife of the Mackenzie Valley on which the development might have an impact.

Marginal note:Consultation

137.3 Before making a decision under subsection 135(1), 137(1) or 137.1(1) in respect of a proposal for a development that, as determined by the Review Board, is to be carried out partly outside the Mackenzie Valley, the person or body making the decision shall take into consideration any report in respect of the proposal that is submitted by a review panel established under the Impact Assessment Act and shall consult the Impact Assessment Agency of Canada.

Cooperation and Joint Reviews

Marginal note:Report by review panel — national interest referral

• 138 (1) Within 15 months after the day on which a review panel that is the subject of an agreement entered into under subsection (3) or 138.1(1) is established under subsection 40(2) of the Impact Assessment Act in respect of a proposal for a development that was referred under paragraph 130(1)(c) of this Act, the review panel shall, in addition to satisfying the requirements of paragraph 51(1)(e) of that Act, submit the report of its recommendations to

  • (a) the federal Minister, who shall distribute it to every responsible minister;

  • (b) any designated regulatory agency from which a licence, permit or other authorization is required for the carrying out of the development; and

  • (c) the Tlicho Government, if the development is to be carried out wholly or partly on Tlicho lands.

• Marginal note:Extension of time limit by federal Minister

  (1.1) The federal Minister may, at the request of the review panel, extend the time limit referred to in subsection (1) by a maximum of two months to take into account circumstances that are specific to the proposal.

• Marginal note:Extension of time limit by Governor in Council

  (1.2) The Governor in Council may, on the recommendation of the federal Minister, further extend the time limit extended under subsection (1.1) any number of times.

• Marginal note:Excluded period

  (1.3) If the review panel requires the person or body that proposes to carry out the development to provide information, or collect information or undertake a study with respect to the development, then the period that is taken by that person or body, in the review panel’s opinion, to comply with the requirement is not included in the calculation of the time limit under subsection (1) or of its extension.

• Marginal note:Provisions applicable

  (2) An examination by a review panel referred to in subsection (1) stands in lieu of an environmental impact review and paragraphs 134(1)(b), (d) and (e) and sections 135 to 137.2 apply, with such modifications as may be required, in respect of the examination, except that a recommendation of a panel may not be referred back to the panel for further consideration.

• Marginal note:Referral — paragraph 130(1)(c)

  (3) If a proposal for a development, other than a proposal to which section 138.1 applies, is referred to the Minister of the Environment under paragraph 130(1)(c), the Review Board shall, within three months after the day on which the proposal was referred to that Minister, enter into an agreement with him or her for the purpose of jointly establishing a review panel and prescribing the manner of its examination of the development’s impact on the environment in accordance with subsection 40(2) of the Impact Assessment Act.

• Marginal note:Extension of time limit by federal Minister

  (4) The federal Minister may, at the request of the Review Board, extend the time limit referred to in subsection (3) by a maximum of two months to take into account circumstances that are specific to the proposal.

• Marginal note:Extension of time limit by Governor in Council

  (5) The Governor in Council may, on the recommendation of the federal Minister, further extend the time limit extended under subsection (4) any number of times.

• Marginal note:Excluded period

  (6) If the Review Board requires the person or body that proposes to carry out the development to provide information, or collect information or undertake a study with respect to the development, then the period that is taken by that person or body, in the Review Board’s opinion, to comply with the requirement is not included in the calculation of the time limit under subsection (3) or of its extension.

Marginal note:Agreement — national interest referral

• 138.1 (1) If a proposal for a development that, as determined by the Review Board, is to be carried out partly outside the Mackenzie Valley and either is to be carried out partly in Wekeezhii or might have an impact on the environment in Wekeezhii is referred to the Minister of the Environment under paragraph 130(1)(c), then the Review Board shall enter into an agreement with the Minister of the Environment for the purpose of jointly establishing a review panel and prescribing the manner of its examination of the development’s impact on the environment in accordance with subsection 40(2) of the Impact Assessment Act.

• Marginal note:Mediation

  (2) If the Review Board and the Minister of the Environment have not entered into an agreement under subsection (1) within the period fixed by any regulations, they shall participate in mediation in accordance with those regulations for the purpose of reaching an agreement under subsection (1).

• Marginal note:Arbitration

  (3) If the Review Board and the Minister of the Environment have not entered into an agreement under subsection (1) by the end of any mediation required under subsection (2), they may, within the period fixed by any regulations, by mutual agreement refer any unresolved matter to arbitration in accordance with those regulations.

• Marginal note:Where no agreement

  (4) Despite subsections (1) to (3), if, within the period fixed by the regulations, an agreement has not been entered into under this section, a panel of the Review Board shall conduct an environmental impact review of the development, but the review shall be limited to the part of the development to be carried out in the Mackenzie Valley.

139 [Repealed, 2014, c. 2, s. 221]

Marginal note:Transboundary effects

• 140 (1) Where it appears to the Review Board, during the environmental assessment of a development proposed to be carried out wholly within the Mackenzie Valley, that the development might have a significant adverse impact on the environment in a region outside the Mackenzie Valley, the Review Board shall so advise the authority responsible for the examination of environmental effects in that region and request its cooperation in the conduct of the assessment.

• Marginal note:Agreement — other authority

  (2) Where the Review Board has determined that a development referred to in subsection (1), other than a development that has been referred to the Minister of the Environment under paragraph 130(1)(c), is likely to have a significant adverse impact on the environment in a region outside the Mackenzie Valley, the Review Board may, with the approval of the federal Minister, enter into an agreement with the authority responsible for the examination of environmental effects in that region to provide for

  • (a) the coordination of the respective examinations of the environmental impact of the development; or

  • (b) the examination of the environmental impact of the development by a joint panel established for that purpose.

• Marginal note:Time limit

  (2.1) Any agreement under paragraph (2)(b) shall be entered into within three months after the day on which the Review Board is advised, as the case may be,

  • (a) of an order for an environmental impact review under subparagraph 130(1)(b)(ii) or paragraph 131(1)(b); or

  • (b) in accordance with subsection 130(4.07), that the proposal has not been referred to the Minister of the Environment.

• Marginal note:Extension of time limit by federal Minister

  (2.2) The federal Minister may, at the request of the Review Board, extend the time limit referred to in subsection (2.1) by a maximum of two months to take into account circumstances that are specific to the proposal.

• Marginal note:Extension of time limit by Governor in Council

  (2.3) The Governor in Council may, on the recommendation of the federal Minister, further extend the time limit extended under subsection (2.2) any number of times.

• Marginal note:Excluded period

  (2.4) If the Review Board requires the person or body that proposes to carry out the development to provide information, or collect information or undertake a study with respect to the development, then the period that is taken by that person or body, in the Review Board’s opinion, to comply with the requirement is not included in the calculation of the time limit under subsection (2.1) or of its extension.

• Marginal note:Environmental impact review

  (2.5) Despite subsections (2.1) to (2.4), if, within the time limit set out in those subsections, an agreement has not been entered into under paragraph (2)(b), a panel of the Review Board shall conduct an environmental impact review of the development.

• Marginal note:Joint panel’s report

  (3) Within 15 months after the day on which a joint panel is established under paragraph (2)(b), the panel shall make a report of its recommendations to

  • (a) the federal Minister, who shall distribute it to every responsible minister;

  • (b) any designated regulatory agency from which a licence, permit or other authorization is required for the carrying out of the development; and

  • (c) the Tlicho Government, if the development is to be carried out wholly or partly on Tlicho lands.

• Marginal note:Extension of time limit by federal Minister

  (3.1) The federal Minister may, at the request of the joint panel, extend the time limit referred to in subsection (3) by a maximum of two months to take into account circumstances that are specific to the proposal.

• Marginal note:Extension of time limit by Governor in Council

  (3.2) The Governor in Council may, on the recommendation of the federal Minister, further extend the time limit extended under subsection (3.1) any number of times.

• Marginal note:Excluded period

  (3.3) If the joint panel requires the person or body that proposes to carry out the development to provide information, or collect information or undertake a study with respect to the development, then the period that is taken by that person or body, in the joint panel’s opinion, to comply with the requirement is not included in the calculation of the time limit under subsection (3) or of its extension.

• Marginal note:Provisions applicable

  (4) An examination by a joint panel established under subsection (2) stands in lieu of an environmental impact review of the proposal and paragraphs 134(1)(b), (d) and (e) and sections 135 to 137.2 apply, with such modifications as may be required, in respect of the examination, except that a recommendation of a panel may not be referred back to the panel for further consideration.

Transregional and External Developments

Marginal note:Environmental assessment

• 141 (1) In relation to a development that is proposed to be carried out partly in the Mackenzie Valley and partly in a region of the Northwest Territories, Yukon or Nunavut adjacent to the Mackenzie Valley, or partly in a province, as the case may be, the Review Board shall to the extent possible coordinate its environmental assessment functions with the functions of any authority responsible for the examination of environmental effects of the development in that region or province.

• Marginal note:Agreement — cases other than Wekeezhii

  (2) If an environmental impact review 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) in respect of a proposal for a development referred to in subsection (1), other than a development referred to in subsection (3), the Review Board may, with the approval of the federal Minister,

  • (a) enter into an agreement with the Minister of the Environment in accordance with subsection 39(1) of the Impact Assessment Act to provide for an examination by a review panel, if that Act applies in respect of the development in the region or province referred to in subsection (1); and

  • (b) in any other case, enter into an agreement with an authority responsible for the examination of environmental effects of such developments in that region or province to provide for the coordination of their respective examinations of the environmental impact of the development or to provide for the examination of that impact by a joint panel established for that purpose.

• Marginal note:Time limit

  (2.1) An agreement made under paragraph (2)(a), or an agreement made under paragraph (2)(b) that provides for an examination by a joint panel, shall be entered into within three months after the day on which the Review Board is advised, as the case may be,

  • (a) of an order for an environmental impact review made under paragraph 130(1)(a), subparagraph 130(1)(b)(ii) or paragraph 131(1)(b); or

  • (b) in accordance with subsection 130(4.07), that the proposal has not been referred to the Minister of the Environment.

• Marginal note:Extension of time limit by federal Minister

  (2.2) The federal Minister may, at the request of the Review Board, extend the time limit referred to in subsection (2.1) by a maximum of two months to take into account circumstances that are specific to the proposal.

• Marginal note:Extension of time limit by Governor in Council

  (2.3) The Governor in Council may, on the recommendation of the federal Minister, further extend the time limit extended under subsection (2.2) any number of times.

• Marginal note:Excluded period

  (2.4) If the Review Board requires the person or body that proposes to carry out the development to provide information, or collect information or undertake a study with respect to the development, then the period that is taken by that person or body, in the Review Board’s opinion, to comply with the requirement is not included in the calculation of the time limit under subsection (2.1) or of its extension.

• Marginal note:Environmental impact review

  (2.5) Despite subsections (2.1) to (2.4), if, within the time limit set out in those subsections, an agreement has not been entered into under paragraph (2)(b), a panel of the Review Board shall conduct an environmental impact review of the development, but the review shall be limited to the part of the development to be carried out in the Mackenzie Valley.

• Marginal note:Agreement — Wekeezhii

  (3) If an environmental impact review 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) in respect of a proposal for a development that, as determined by the Review Board, is to be carried out partly outside the Mackenzie Valley and either is to be carried out partly in Wekeezhii or might have an impact on the environment in Wekeezhii, the Review Board shall enter into an agreement for the purpose of jointly establishing a review panel and prescribing the manner of its examination of the impact on the environment of the development

  • (a) with an authority responsible for the examination of environmental effects of the part of the development that is to be carried out outside the Mackenzie Valley; or

  • (b) with the Minister of the Environment if that Minister is authorized under subsection 39(1) of the Impact Assessment Act to enter into such an agreement.

• Marginal note:Where no agreement

  (4) Despite subsection (3), if, within the period fixed by the regulations, an agreement has not been entered into under that subsection, a panel of the Review Board shall conduct an environmental impact review of the development, but the review shall be limited to the part of the development to be carried out in the Mackenzie Valley.

• Marginal note:Report — review panel or joint panel

  (5) Within 15 months after the day on which a review panel or joint panel is established by an agreement referred to in subsection (2) or (3), the panel shall make a report of its examination to

  • (a) the federal Minister, who shall distribute it to every responsible minister;

  • (b) any designated regulatory agency from which a licence, permit or other authorization is required for the carrying out of the development;

  • (c) in the case of a joint panel referred to in paragraph (2)(b) or (3)(a), the minister of the federal, provincial or territorial government having jurisdiction in relation to examinations conducted by the authority referred to in that paragraph; and

  • (d) the Tlicho Government, if the development is to be carried out partly on Tlicho lands.

• Marginal note:Extension of time limit by federal Minister

  (5.1) The federal Minister may, at the request of the review panel or joint panel, extend the time limit referred to in subsection (5) by a maximum of two months to take into account circumstances that are specific to the proposal.

• Marginal note:Extension of time limit by Governor in Council

  (5.2) The Governor in Council may, on the recommendation of the federal Minister, further extend the time limit extended under subsection (5.1) any number of times.

• Marginal note:Excluded period

  (5.3) If the review panel or joint panel requires the person or body that proposes to carry out the development to provide information, or collect information or undertake a study with respect to the development, then the period that is taken by that person or body, in the panel’s opinion, to comply with the requirement is not included in the calculation of the time limit under subsection (5) or of its extension.

• Marginal note:Provisions applicable

  (6) An examination by a review panel or joint panel referred to in subsection (2) or (3) stands in lieu of an environmental impact review of the proposal referred to in that subsection and paragraphs 134(1)(b), (d) and (e) and sections 135 to 137.2 apply, with such modifications as may be required, in respect of the examination, except that a recommendation of a panel may not be referred back to the panel for further consideration.

Marginal note:Transregional impact

142 Where a development proposed to be carried out wholly in a region of the Northwest Territories, Yukon or Nunavut adjacent to the Mackenzie Valley, or wholly in a province, might have a significant adverse impact on the environment in the Mackenzie Valley, the Review Board may, with the approval of the federal Minister, enter into an agreement with the authority responsible for the examination of the environmental effects of such developments in that region or province to provide for the participation of the Review Board in the examination of the environmental effects of the development by that authority.

Cost Recovery

Marginal note:Obligation to pay

• 142.01 (1) The person or body that proposes to carry out the development shall pay to the federal Minister the following amounts and costs relating to an environmental assessment, an environmental impact review or an examination — carried out by a review panel, or a joint panel, established jointly by the Review Board and any other person or body — that stands in lieu of an environmental impact review:

  • (a) any amounts that are prescribed by the regulations and that are related to the exercise of the powers and performance of the duties and functions of the Review Board or its members or of members of the Review Board’s review panels or of a review panel or a joint panel;

  • (b) any costs incurred by the Review Board for services that are prescribed by the regulations and that are provided to it by a third party; and

  • (c) any amounts that are prescribed by the regulations and that are related to the exercise of the powers and performance of the duties and functions of the federal Minister.

• Marginal note:Scope

  (2) For the purposes of subsection (1), the services, powers, duties or functions described in that subsection are limited to those provided, exercised or performed

  • (a) during the period that begins when a proposed development is referred to the Review Board under section 125, or when a person or body that proposes to carry out a development is given notice under subsection 126(5), and ends when a copy of the final decision under the process set out in this Part is issued to that person or body; or

  • (b) during any period prescribed by the regulations that is within the period referred to in paragraph (a).

• Marginal note:Debt due to Her Majesty

  (3) The amounts and costs that a person or body that proposes to carry out a development is to pay under subsection (1) constitute a debt due to Her Majesty in right of Canada and may be recovered as such in any court of competent jurisdiction.

Public Register

Marginal note:Public register

• 142.1 (1) The Review Board shall maintain at its main office a register convenient for use by the public in which shall be entered the following:

  • (a) all documents that are produced, collected or received by the Review Board, a review panel of the Review Board, a review panel or a joint panel established jointly by the Review Board and any other person or body in relation to any environmental assessment or environmental impact review;

  • (b) any notice it receives under subsection 124(1) or (2); and

  • (c) any report it receives under paragraph 125(1)(a) or (2)(a).

• Marginal note:Register to be open to inspection

  (2) The register shall be open to inspection by any person during the Review Board’s normal business hours, subject to the payment of any fee prescribed by the regulations.

• Marginal note:Copies of contents of register

  (3) The Review Board shall, on request and on payment of any fee prescribed by the regulations, make available copies of information contained in the register.

• Marginal note:Internet access

  (4) The register shall also be made accessible to the public via the Internet.

• Marginal note:Categories of available information

  (5) Despite any other provision of this Act, the register shall contain information only if

  • (a) it has otherwise been made publicly available; or

  • (b) in the case of a record, the Review Board

    • (i) determines that it would have been disclosed to the public in accordance with the Access to Information Act if a request had been made in respect of that record under that Act at the time the record came under the control of the Review Board, including any record that would be disclosed in the public interest under subsection 20(6) of that Act, or

    • (ii) has reasonable grounds to believe that it would be in the public interest to disclose the record because it is required for the public to participate effectively in a preliminary screening, environmental assessment or environmental impact review, other than any record whose disclosure would be prohibited under section 20 of the Access to Information Act.

• Marginal note:Applicability of sections 27, 28 and 44 of Access to Information Act

  (6) Sections 27, 28 and 44 of the Access to Information Act apply to any information described in subsection 27(1) of that Act that the Review Board intends to be included in the register with any necessary modifications, including the following:

  • (a) the information is deemed to be a record that the head of a government institution intends to disclose; and

  • (b) any reference to the person who requested access shall be disregarded.

Policy Directions

Marginal note:Minister’s policy directions to Review Board

• 142.2 (1) The federal Minister may, after consultation with the Review Board and the Tlicho Government, give written policy directions that are binding on the Review Board or its review panels with respect to the exercise of any of their functions under this Act.

• Marginal note:Limitation

  (2) Policy directions do not apply in respect of a proposal for a development that, at the time the directions are given, is before the Review Board or one of its review panels.

• Marginal note:Conflict

  (3) If there is a conflict between policy directions given under this section and the provisions of any Act of Parliament, any regulations made under an Act of Parliament or any territorial law, those provisions prevail to the extent of the conflict.

Regulations

Marginal note:Regulations

• 143 (1) The Governor in Council may, following consultation by the federal Minister with the territorial Minister, first nations and the Tlicho Government, make regulations for carrying out the purposes and provisions of this Part and, in particular, regulations

  • (a) prescribing procedures in relation to preliminary screenings, environmental assessments and environmental impact reviews generally, including

    • (i) limits on the time for making any decision or recommendation, including a decision of a responsible minister, and

    • (ii) the form and content of reports required by this Part;

  • (b) specifying the federal and territorial laws in respect of which preliminary screenings of proposals must be conducted by regulatory authorities and designated regulatory agencies before the issuance of licences, permits or other authorizations;

  • (c) exempting any development or class of development from a preliminary screening for a reason referred to in paragraph 124(1)(a) or (b);

  • (d) prescribing the form of the register to be maintained by the Review Board under section 142.1 and the information to be entered in it, and respecting the fees, if any, to be paid to examine the register or to obtain copies from it;

  • (e) fixing a period for the purposes of subsection 138.1(2) and respecting mediation referred to in that subsection;

  • (f) fixing the period within which a matter may be referred to arbitration under subsection 138.1(3) and respecting arbitration under that subsection;

  • (g) fixing a period for the purposes of subsections 138.1(4) and 141(4);

  • (h) respecting the recovery of amounts and costs for the purposes of section 142.01, including prescribing the amounts, services and period for the purposes of that section and exempting any class of person or body that proposes to carry out the development from the application of that section; and

  • (i) establishing requirements respecting any consultation that may be undertaken under this Part, whether or not it is expressly provided for, with a first nation, the Tlicho First Nation, the Tlicho Government or an Aboriginal people who uses an area outside the Mackenzie Valley, including the manner in which it is to be conducted, and providing for the delegation of certain procedural aspects of that consultation.

• Marginal note:Consultation with Review Board

  (2) Regulations may only be made under any of paragraphs (1)(a) and (d) to (i), and regulations made under paragraph (1)(b) or (c) may only be amended, following consultation by the federal Minister with the Review Board.

• Marginal note:Consultation with boards established under Parts 3 and 4

  (2.1) In addition, the federal Minister shall consult the boards established under Parts 3 and 4 before making or amending any regulations under paragraph (1)(i) that relate to any consultation undertaken by one of those boards in relation to a preliminary screening.

• Marginal note:Exemptions

  (3) No development is to be exempted for a reason set out in paragraph 124(1)(b) if it is a designated project or belongs to a class of designated projects, within the meaning of the Impact Assessment Act, by virtue of regulations made under paragraph 109(1)(b) of that Act.

Marginal note:Incorporation by reference — limitation removed

143.1 The limitation set out in paragraph 18.1(2)(a) of the Statutory Instruments Act to the effect that a document must be incorporated as it exists on a particular date does not apply to the powers to make regulations under this Part.

Marginal note:Schedule

• 144 (1) The Governor in Council may, by regulations made following consultation by the federal Minister with the territorial Minister, the Review Board, the first nations and the Tlicho Government, amend the schedule by adding, or by deleting, the name of any agency, other than a land and water board established by Part 3 or 4, that exercises regulatory powers pursuant to territorial or federal laws and that is not subject to specific control or direction by a minister of the federal or territorial government or the Governor in Council.

• Marginal note:Exception

  (2) Policy directions of general application governing an agency, or the power to approve, vary or rescind an agency’s decisions, do not constitute specific control or direction for the purposes of subsection (1).

PART 5.1Administrative Monetary Penalties

Interpretation

Marginal note:Definitions

144.1 The following definitions apply in this Part.

board

board has the same meaning as in section 51 or subsection 96(1), as the case may be. (office)

inspector

inspector means a person designated as an inspector under section 84 or 142.24. (inspecteur)

management area

management area has the same meaning as in section 51. (zone de gestion)

penalty

penalty means an administrative monetary penalty imposed under this Part for a violation. (pénalité)

review body

review body means

• (a) with respect to a violation relating to Part 3 that is designated as such by a regulation made under paragraph 144.11(1)(a),

  • (i) the Gwich’in Land and Water Board, if the violation was committed in its management area,

  • (ii) the Sahtu Land and Water Board, if the violation was committed in its management area,

  • (iii) the Wekeezhii Land and Water Board, if the violation was committed in its management area, or

  • (iv) the Mackenzie Valley Land and Water Board, if the violation was committed in an area outside any management area;

• (b) despite subparagraphs (a)(i) to (iii), the Mackenzie Valley Land and Water Board, if the violation relating to Part 3 that was committed in a management area is a failure to comply with a term or condition of any licence, permit or other authorization issued by that Board or a contravention of any order, direction or decision made or given in relation to such a licence, permit or other authorization; and

• (c) with respect to a violation relating to Part 5 that is designated as such by a regulation made under paragraph 144.11(1)(a), the federal Minister. (réviseur)

Federal Minister’s Powers

Marginal note:Regulations

• 144.11 (1) The federal Minister may, with the approval of the Governor in Council and following consultation with the Gwich’in and Sahtu First Nations and the Tlicho Government, make regulations for the purposes of sections 144.12 to 144.31, including regulations

  • (a) designating as a violation that may be proceeded with in accordance with this Act

    • (i) the contravention of any specified provision of this Act or of any of its regulations,

    • (ii) the contravention of any order, direction or decision, whether of a specified class or not, made or given under this Act, or

    • (iii) the failure to comply with a term or condition, whether of a specified class or not, of any licence, permit or other authorization or development certificate or amended development certificate issued under this Act;

  • (b) respecting the determination of or the method of determining the amount payable as the penalty, which may be different for individuals and other persons, for each violation;

  • (c) establishing the form and content of notices of violation;

  • (d) respecting the service of documents required or authorized under this Act, including the manner and proof of service and the circumstances under which documents are presumed to be served;

  • (e) respecting the review by a review body in respect of a notice of violation; and

  • (f) respecting the publication of the nature of a violation, the name of the person who committed it and the amount of the penalty.

• Marginal note:Maximum amount of penalty

  (2) The amount that may be determined under any regulations made under paragraph (1)(b) as the penalty for each violation shall not be more than $25,000 in the case of an individual, and $100,000 in the case of any other person.

Violations

Marginal note:Who may issue notices

144.12 Inspectors are authorized to issue notices of violation.

Marginal note:Violation and penalty

• 144.13 (1) Every person who contravenes or fails to comply with a provision, order, direction, decision, term or condition designated under paragraph 144.11(1)(a) commits a violation and is liable to a penalty in the amount that is determined in accordance with the regulations.

• Marginal note:Purpose of penalty

  (2) The purpose of the penalty is to promote compliance with this Act and not to punish.

Marginal note:Liability of directors, officers, etc.

144.14 If a corporation commits a violation, any director, officer or agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to a penalty in the amount that is determined in accordance with the regulations, whether or not the corporation has been proceeded against in accordance with this Act.

Marginal note:Proof of violation

144.15 In any proceedings under this Act against a person in relation to a violation, it is sufficient proof of the violation to establish that it was committed by an employee or agent or mandatary of the person, whether or not the employee or the agent or mandatary is identified or proceeded against in accordance with this Act.

Marginal note:Issuance and service of notice of violation

• 144.16 (1) If an inspector has reasonable grounds to believe that a person has committed a violation, the inspector may issue a notice of violation and cause it to be served on the person.

• Marginal note:Contents

  (2) The notice of violation shall

  • (a) name the person who is believed to have committed the violation;

  • (b) set out the relevant facts of the violation;

  • (c) set out the amount of the penalty;

  • (d) inform the person of their right to request a review with respect to the facts of the violation or the amount of the penalty, and of the period within which that right shall be exercised;

  • (e) inform the person of the time and manner of paying the penalty; and

  • (f) inform the person that, if they do not pay the penalty or exercise their right referred to in paragraph (d), they are considered to have committed the violation and are liable to the penalty.

• Marginal note:Copy of notice of violation

  (3) The inspector shall, without delay after issuing the notice of violation, provide a copy of it,

  • (a) with respect to a violation relating to Part 3, to the board that may act as the review body and the federal Minister; or

  • (b) with respect to a violation relating to Part 5, to the federal Minister and

    • (i) the board that has jurisdiction over a management area, if the development is carried out wholly within that management area; or

    • (ii) the board established under Part 4, if the development is carried out in more than one management area, in a management area and an area outside any management area, or wholly outside any management area.

Rules About Violations

Marginal note:Certain defences not available

• 144.17 (1) A person named in a notice of violation does not have a defence by reason that the person

  • (a) exercised due diligence to prevent the commission of the violation; or

  • (b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.

• Marginal note:Common law principles

  (2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under this Act applies in respect of a violation to the extent that it is not inconsistent with this Act.

Marginal note:Continuing violation

144.18 A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.

Marginal note:Violation or offence

• 144.19 (1) Proceeding with any act or omission as a violation under this Act precludes proceeding with it as an offence under this Act, and proceeding with it as an offence under this Act precludes proceeding with it as a violation under this Act.

• Marginal note:Violations not offences

  (2) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.

Marginal note:Limitation period

144.2 No notice of violation is to be issued more than two years after the day on which the federal Minister becomes aware of the acts or omissions that constitute the alleged violation.

Reviews

Marginal note:Request for review

144.21 A person who is served with a notice of violation may, within 30 days after the notice is served or within any longer period prescribed by the regulations, make a request to the review body for a review of the facts of the violation or the amount of the penalty, or both.

Marginal note:Correction or cancellation of notice of violation

144.22 At any time before a request for a review in respect of a notice of violation is received by the review body, an inspector may cancel the notice of violation or correct an error in it.

Marginal note:Review

144.23 On receipt of a request for a review in respect of a notice of violation, the review body shall conduct the review.

Marginal note:Witnesses

• 144.24 (1) If the review body is a board, it may, when conducting its review, summon any person to appear as a witness and order the witness to give evidence orally or in writing and produce any documents and things that it considers necessary for the purpose of the review.

• Marginal note:Enforcement of summonses and orders

  (2) Any summons issued or order made under subsection (1) may be made a summons or an order of the Federal Court or of the superior court of a province and is enforceable in the same manner as a summons or an order of that court.

• Marginal note:Procedure

  (3) To make a summons issued or an order made under subsection (1) a summons or an order of the Federal Court or of the superior court of a province, the usual practice and procedure of the court in such matters may be followed or a certified copy of the summons or order may be filed with the court’s registrar and the summons or order then becomes a summons or an order of that court.

• Marginal note:Fees for witnesses

  (4) A witness who is served with a summons is entitled to receive the fees and allowances to which persons who are summoned to appear as witnesses before the Federal Court are entitled.

Marginal note:Determination

• 144.25 (1) The review body shall determine, as the case may be, whether the person committed the violation or whether the amount of the penalty for the violation was determined in accordance with the regulations, or both.

• Marginal note:Correction of penalty

  (2) If the review body determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the review body shall correct it.

• Marginal note:Review of facts — burden of proof

  (3) If the facts of a violation are reviewed, the inspector who issued the notice of violation shall establish, on a balance of probabilities, that the person named in it committed the violation identified in it.

• Marginal note:Written reasons

  (4) The review body shall make a determination in writing, with reasons, and cause it to be served on the person who requested the review.

• Marginal note:Determination final — board

  (5) A determination made under this section by a board acting as a review body is final and binding and, except for judicial review under section 32, is not subject to appeal or to review by any court.

• Marginal note:Determination final — federal Minister

  (6) A determination made under this section by the federal Minister acting as a review body is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.

• Marginal note:Liability

  (7) If the review body determines that the person who requested the review committed the violation, the person who requested the review is liable to the penalty as set out in the determination.

• Marginal note:Copy of determination

  (8) The review body shall, without delay after making the determination, provide a copy of it to

  • (a) the federal Minister, if the review body is a board; or

  • (b) the board to which a copy of the notice of violation was provided under subsection 144.16(3), if the review body is the federal Minister.

Responsibility

Marginal note:Payment

144.26 If a person pays the penalty set out in a notice of violation, the person is considered to have committed the violation and proceedings in respect of it are ended.

Marginal note:Failure to act

144.27 A person who neither pays the penalty within the period set out in the notice of violation — nor requests a review within the period referred to in section 144.21 — is considered to have committed the violation and is liable to the penalty.

Recovery of Penalties

Marginal note:Debt due to Her Majesty

• 144.28 (1) A penalty constitutes a debt due to Her Majesty in right of Canada and may be recovered as such in any court of competent jurisdiction.

• Marginal note:Limitation period or prescription

  (2) No proceedings to recover the debt are to be instituted more than five years after the day on which the debt becomes payable.

Marginal note:Certificate

• 144.29 (1) The federal Minister may issue a certificate of non-payment certifying the unpaid amount of any debt referred to in subsection 144.28(1).

• Marginal note:Registration

  (2) Registration in any court of competent jurisdiction of a certificate of non-payment has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.

General

Marginal note:Authenticity of documents

144.3 In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 144.16(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.

Marginal note:Publication related to violation

• 144.31 (1) Subject to subsection (2) and any regulations, the board that received a copy of the notice of violation under subsection 144.16(3) — whether acting as a review body or not — may make public the nature of a violation, the name of the person who committed it and the amount of the penalty.

• Marginal note:Restriction of publication

  (2) The board may only make that information public if

  • (a) the person named in the notice of violation has paid the penalty set out in the notice;

  • (b) the person has not requested a review within the period referred to in section 144.21; or

  • (c) the review body has determined that the person who requested the review committed the violation.

PART 5.2Regional Studies

Committee Studying Impact of Works and Activities

Marginal note:Establishment

• 144.32 (1) The federal Minister may establish a committee to conduct a study of the impact of existing or future works or activities carried out in a region of the Mackenzie Valley.

• Marginal note:Appointment of members

  (2) The federal Minister shall appoint one or more persons as members of the committee.

• Marginal note:Mandate

  (3) The federal Minister shall establish the committee’s terms of reference after seeking and considering the advice of the territorial government and, if the study examines works or activities affecting any first nation or the Tlicho First Nation, the advice of that first nation or the Tlicho Government, as the case may be.

Marginal note:Conflict of interest

• 144.33 (1) A person shall not be appointed, or continue, as a member of the committee if doing so would place them in a material conflict of interest.

• Marginal note:Status or entitlements under agreement

  (2) A person is not placed in a material conflict of interest merely because of any status or entitlement conferred on them under the Gwich’in Agreement, the Sahtu Agreement, the Tlicho Agreement or any other agreement between a first nation and Her Majesty in right of Canada for the settlement of a land claim.

Marginal note:Other participants in study

144.34 The federal Minister, if he or she considers it appropriate, may enter into an agreement or arrangement with any person or body that possesses knowledge or expertise that is relevant to the study to participate in the study.

Marginal note:Elements to consider

144.35 In conducting its study, the committee shall consider any traditional knowledge and scientific information that is made available to it.

Marginal note:Information

144.36 Subject to any other federal or territorial law, the committee may obtain, from any board established by this Act or from any department or agency of the federal or territorial government, any information in the possession of the board, department or agency that is required for it to conduct its study.

Joint Committee

Marginal note:Establishment

144.37 If the federal Minister is of the opinion that it is appropriate to conduct a study of the impact of existing or future works or activities carried out in a region of the Mackenzie Valley and in a region contiguous to it, the federal Minister may enter into an agreement or arrangement with an authority responsible for the examination of environmental effects in that region respecting the establishment of a joint committee to conduct the study and the manner in which the study is to be conducted.

Report

Marginal note:Report to federal Minister

144.38 On completion of its study, the committee or joint committee shall provide a report to the federal Minister, who shall make it available to the public.

Marginal note:Consideration of report

144.39 The report must be considered in the exercise or performance under this Act of any powers, duties or functions of the boards established under subsections 36(1), 38(1), 54(1), 56(1), 57.1(1) and 99(1), the Mackenzie Valley Environmental Impact Review Board, its review panels, or a review panel or a joint panel established jointly by the Review Board and any other person or body, and of any body conducting a preliminary screening of a proposal for a development under section 124.

PART 6Environmental Monitoring and Audit

Marginal note:Definitions

145 The definitions in this section apply in this Part.

impact on the environment

impact on the environment has the same meaning as in Part 5. (répercussions environnementales)

responsible authority

responsible authority means the person or body designated by the regulations as the responsible authority or, in the absence of a designation, the federal Minister. (autorité compétente)

Marginal note:Cumulative environmental impact

146 The responsible authority shall, subject to the regulations, analyze data collected by it, scientific data, traditional knowledge and other pertinent information for the purpose of monitoring the cumulative impact on the environment of concurrent and sequential uses of land and water and deposits of waste in the Mackenzie Valley.

Marginal note:Consultation with first nations and Tlicho Government

• 147 (1) A responsible authority that is a minister of the Crown in right of Canada shall carry out the functions referred to in section 146 in consultation with the first nations and the Tlicho Government.

• Marginal note:Role of first nations and Tlicho Government

  (2) Where a responsible authority is other than a minister of the Crown in right of Canada, the Gwich’in and Sahtu First Nations and the Tlicho Government are entitled to participate in the functions referred to in section 146 in the manner provided by the regulations.

Marginal note:Environmental audit

• 148 (1) The federal Minister shall have an environmental audit conducted at least once every five years by a person or body that is independent.

• Marginal note:Terms of reference

  (2) The federal Minister shall, after consulting the Gwich’in First Nation, the Sahtu First Nation, the Tlicho Government and the territorial government, fix the terms of reference of an environmental audit, including the key components of the environment to be examined.

• Marginal note:Content of audit

  (3) An environmental audit shall include

  • (a) an evaluation of information, including information collected or analyzed under section 146, in order to determine trends in environmental quality, potential contributing factors to changes in the environment and the significance of those trends;

  • (b) a review of the effectiveness of methods used for carrying out the functions referred to in section 146;

  • (c) a review of the effectiveness of the regulation of uses of land and water and deposits of waste on the protection of the key components of the environment from significant adverse impact; and

  • (d) a review of the response to any recommendations of previous environmental audits.

• Marginal note:Report of audit

  (4) A report of the environmental audit, which may include recommendations, shall be prepared and submitted to the federal Minister, who shall make the report available to the public.

• Marginal note:Participation by first nations and Tlicho Government

  (5) The Gwich’in and Sahtu First Nations and the Tlicho Government are entitled to participate in an environmental audit in the manner provided by the regulations.

Marginal note:Information

149 Subject to any other federal or territorial law, a responsible authority or a person or body who performs an environmental audit may obtain, from any board established by this Act or from any department or agency of the federal or territorial government, any information in the possession of the board, department or agency that is required for the performance of the functions of the responsible authority or person under this Part.

Marginal note:Regulations

150 The Governor in Council may, after consultation by the federal Minister with affected first nations, the Tlicho Government and the territorial Minister, make regulations for carrying out the purposes and provisions of this Part and, in particular, regulations

• (a) respecting the collection of data and the analysis of data so collected and scientific data, traditional knowledge and other information, for the purposes of section 146;

• (b) designating a person or body as the responsible authority for the purposes of this Part; and

• (c) respecting the manner of participation of the Gwich’in and Sahtu First Nations and the Tlicho Government in the functions of a responsible authority that is not a minister of the Crown or in an environmental audit.

PART 7Transitional Provisions, Consequential Amendments and Coming into Force

Transitional Provisions

151 [Repealed, 2014, c. 2, s. 232]

Marginal note:Existing rights and interests

152 Rights to the use of land under any lease, easement or other interest in land that was granted under the Territorial Lands Act or the regulations made under that Act, or under any territorial law, and that exist on December 22, 1998, with respect to a settlement area, or on March 31, 2000, with respect to any other portion of the Mackenzie Valley, continue in effect, subject to the terms and conditions of exercising those rights.

Marginal note:Existing licences continued

153 Licences issued under the Northwest Territories Waters Act respecting a use of waters or deposit of waste in a settlement area that exist on December 22, 1998 — and, respecting a use of waters or deposit of waste in another portion of the Mackenzie Valley, that exist on March 31, 2000 — continue in effect and are deemed to be licences within the meaning of Part 3.

154 [Repealed, 2014, c. 2, s. 234]

155 [Repealed, 2014, c. 2, s. 234]

156 [Repealed, 2014, c. 2, s. 234]

Marginal note:Inspectors

• 157 (1) A person acting, before the coming into force of section 84, as an inspector for the purposes of regulations made pursuant to the Territorial Lands Act is deemed to be an inspector designated under that section.

• (2) [Repealed, 2014, c. 2, s. 235]

Marginal note:Application of Part 5

157.1 Part 5 does not apply in respect of any licence, permit or other authorization related to an undertaking that is the subject of a licence or permit issued before June 22, 1984, except a licence, permit or other authorization for an abandonment, decommissioning or other significant alteration of the project.

158 [Repealed, 2014, c. 2, s. 236]

159 [Repealed, 2014, c. 2, s. 236]

Consequential Amendments

160 to 167 [Amendments]

Coming into Force

Marginal note:Coming into force — order in council

• Footnote ^*168 (1) Subject to subsection (2), this Act comes into force on a day to be fixed by order of the Governor in Council.

• Marginal note:Coming into force — Part 4

  (2) Part 4 and subsections 160(2), 165(2) and 167(2) come into force on a day to be fixed by order of the Governor in Council.

  • Return to footnote ^*[Note: Act, other than Part 4 and subsections 160(2), 165(2) and 167(2), in force December 22, 1998, see SI/99-1; Part 4 and subsections 160(2), 165(2) and 167(2) in force March 31, 2000, see SI/2000-17.]