Vol. 148, No. 8 — April 9, 2014

Registration

SOR/2014-73 March 28, 2014

MACKENZIE VALLEY RESOURCE MANAGEMENT ACT

Regulations Amending the Preliminary Screening Requirement Regulations and the Exemption List Regulations

P.C. 2014-337 March 27, 2014

Whereas, pursuant to subsections 143(1) (see footnote a) and (2) (see footnote b) of the Mackenzie Valley Resource Management Act (see footnote c), the Minister of Indian Affairs and Northern Development has consulted with the Minister of Environment and Natural Resources of the Northwest Territories, the first nations, the Tlicho Government and the Mackenzie Valley Environmental Impact Review Board with regard to the annexed Regulations Amending the Preliminary Screening Requirement Regulations and the Exemption List Regulations.

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Indian Affairs and Northern Development, pursuant to paragraphs 143(1)(b) and (c) of the Mackenzie Valley Resource Management Act (see footnote d), makes the annexed Regulations Amending the Preliminary Screening Requirement Regulations and the Exemption List Regulations.

REGULATIONS AMENDING THE PRELIMINARY SCREENING REQUIREMENT REGULATIONS AND THE EXEMPTION LIST REGULATIONS

PRELIMINARY SCREENING REQUIREMENT REGULATIONS

1. The portion of paragraph 2(b) of Part 1 of Schedule 1 to the French version of the Preliminary Screening Requirement Regulations (see footnote 1) in columns 3 and 4 is replaced by the following:

Article

Colonne 3

Dispositions

Colonne 4

Restrictions

2.

b) paragraphe 60(1)

Exclut l’annulation et l’autorisation de la cession d’un permis d’utilisation des eaux
 

c) alinéa 60(1.1)a)

Exclut la suspension, l’annulation et l’autorisation de la cession d’un permis d’utilisation des eaux

2. The portion of paragraph 7(b) of Part 1 of Schedule 1 to the English version of the Regulations in columns 3 and 4 is replaced by the following:

Item

Column 3

Provision

Column 4

Limitations

7.

(b) subsection 60(1)

Excludes cancellation and approval of an assignment of a water licence
 

(c) paragraph 60(1.1)(a)

Excludes suspension, cancellation and approval of an assignment of a water licence

3. Item 7 of Part 1 of Schedule 1 to the French version of the Regulations is repealed.

4. Item 12 of Part 1 of Schedule 1 to the English version of the Regulations is repealed.

5. Item 21 of Part 2 of Schedule 1 to the Regulations is repealed.

6. Part 1 of Schedule 2 to the Regulations is amended by adding the following after item 2:

Item

Column 1

Equivalent item number in French text

Column 2



Act

Column 3



Provision

Column 4



Limitations

2.1

2.1

Oil and Gas Operations Act, S.N.W.T. 2014, c. 14

(a) paragraph 10(1)(b)

  
     

(b) subsection 14(4)

  

7. Part 2 of Schedule 2 of the English version to the Regulations is amended by adding the following after item 2:

Item

Column 1

Equivalent item number in French text

Column 2



Regulations

Column 3



Provision

Column 4



Limitations

2.1

5

Reindeer Regulations, N.W.T. Reg.-011-2014 (Reindeer Act, S.N.W.T. 2014, c. 16)

paragraph 4(1)(b)

  

8. Part 2 of Schedule 2 of the French version to the Regulations is amended by adding the following after item 4 :

Article

Colonne 1

Numéro d’article équivalent dans la version anglaise

Colonne 2




Règlement

Colonne 3




Dispositions

Colonne 4




Restrictions

5.

2.1

Règlement sur les rennes (R.T.N.- O., R-011-2014) (Loi sur les rennes, L.T.N.-O. 2014, ch. 16)

alinéa 4(1)b)

  

EXEMPTION LIST REGULATIONS

9. The Exemption List Regulations (see footnote 2) are amended by replacing “Northwest Territories Waters Act” with “Waters Act, S.N.W.T. 2014, c. 18” in the following provisions:

COMING INTO FORCE

10. These Regulations come into force on April 1, 2014, but if they are registered after that day, they come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

On April 1, 2014, the Governments of Canada and the Northwest Territories implemented an agreement that transfers administration and control of most territorial lands and resources to the Commissioner of the Northwest Territories. The arrangement devolves a range of province-like responsibilities and powers from the federal to the territorial government, with the objective of providing northerners with greater control over their lands and resources.

Implementation of the agreement required extensive legislative and regulatory change to ensure that the acts and regulations governing lands and resources in the Northwest Territories reflect the new breakdown of federal and territorial responsibilities.

This proposal is needed to ensure a seamless transition for the environmental impact assessment regime in the Mackenzie Valley of the Northwest Territories so that it continues to function as intended. The proposal makes minor and consequential amendments to two sets of regulations — one dealing with requirements for preliminary screenings in the environmental impact assessment process and one exempting certain projects from the requirement of a preliminary screening — respecting the first step of the environmental impact assessment process. The amendments are needed to reflect changes to legislation resulting from devolution. They are technical and will ensure that there is no unintended gap in environmental assessment requirements for certain projects.

Background

The Northwest Territories Devolution Agreement set out the agreed upon changes to transfer administration and control for most lands and resources in the Northwest Territories from the Government of Canada to the Commissioner of the Northwest Territories. The Northwest Territories Devolution Act gave effect to this agreement by repealing or limiting the jurisdiction of certain federal acts to federal lands or federally managed contaminated sites. To complete the process, the Legislative Assembly of the Northwest Territories enacted legislation substantially mirroring the federal legislation that was curtailed or repealed. This was concluded on April 1, 2014.

This has changed the legislative and regulatory authorities that are referenced in certain regulations governing the environmental impact assessment process under the Mackenzie Valley Resource Management Act.

The Mackenzie Valley Resource Management Act establishes a co-management structure for conducting environmental assessments and reviews and regulating the use of land and water on public and private lands and waters throughout the Mackenzie Valley in the Northwest Territories. The Mackenzie Valley, as defined in the Mackenzie Valley Resource Management Act, includes all of the Northwest Territories with the exception of the Inuvialuit Settlement Region and the Wood Buffalo National Park. The Canadian Environmental Assessment Act 2012 has limited application in the Mackenzie Valley.

While the Mackenzie Valley Resource Management Act remains federal, administration and control over areas, including (on territorial, private and First Nations-owned lands) waters and oil and gas administration, has been transferred to the Government of the Northwest Territories. These changes to the Preliminary Screening Requirement Regulations and the Exemption List Regulations are consequential to the changes in administration and control and serve to continue the requirements for, and exemptions to, preliminary screening requirements that existed prior to the implementation of the Northwest Territories Devolution Agreement. In practical terms, the regulatory body that issues a licence, permit or authorization may change from federal to territorial, but the thresholds upon which a project can be exempt from preliminary screening will remain the same — a development proposal will not face different preliminary screening requirements after devolution.

The Preliminary Screening Requirement Regulations under the Mackenzie Valley Resource Management Act set out the regulatory authorities or designated regulatory agencies that are required to conduct a preliminary screening under the Act when they receive an application for a licence, permit or authorization. This is the first step in the overall environmental impact assessment process in the Mackenzie Valley. As a result of the devolution of administration and control of lands and resources and the resulting legislative changes, amendments to the Preliminary Screening Requirement Regulations were required. These technical amendments ensure that proposed developments continue to undergo preliminary screenings and that no gaps in the environmental impact assessment and permitting regime are created as a result of outdated references to repealed legislation and a lack of references to new territorial laws.

Also respecting preliminary screenings under the Mackenzie Valley Resource Management Act, the Exemption List Regulations exempt certain developments from the requirement to undergo a preliminary screening if certain conditions are met. One such condition that is repeated throughout the Exemption List Regulations is that the development “does not require a land use permit or a water licence under the Mackenzie Valley Resource Management Act, the Northwest Territories Waters Act [repealed] or the Territorial Land Use Regulations.” As a result of the devolution-related legislative changes, technical amendments to the Exemption List Regulations, including providing references to the Northwest Territories Waters Act, were required to ensure that the list of exempted projects does not include projects with potentially significant environmental impacts or public concern as a result of outdated references to repealed legislation (the Northwest Territories Waters Act) and a lack of references to new territorial laws [the Waters Act (Northwest Territories)]. These amendments also make it clear that if a development does not require a licence under the Waters Act (Northwest Territories), and satisfies the other conditions of the regulations, that the development is excluded from the requirement to undergo a preliminary screening.

The Preliminary Screening Requirement Regulations and the Exemption List Regulations, together, set out which applications for a licence, permit or authorization related to a development will trigger a preliminary screening and which developments can be exempted from preliminary screening.

Objectives

Technical amendments to the Preliminary Screening Requirement Regulations and the Exemption List Regulations were necessary to maintain the existing requirements for preliminary screenings in the Mackenzie Valley of the Northwest Territories, despite legislative and regulatory changes made to implement the Northwest Territories Devolution Agreement.

The amendments to the Preliminary Screening Requirement Regulations ensure that proposed developments with potentially significant impacts in the Mackenzie Valley of the Northwest Territories continue to undergo preliminary screenings as set out in the Mackenzie Valley Resource Management Act as a result of an application to a regulatory body for a licence, permit or authorization. This ensures that developments with a potentially significant environmental impact will continue to undergo preliminary screening and that a gap is not created that would allow developers to avoid preliminary screening for applications under the new territorial jurisdiction — the territorial, private and First Nations-owned lands in the Mackenzie Valley.

The amendments to the Exemption List Regulations make it clear which projects are not subject to preliminary screening, that is, those with insignificant environmental impacts.

Description

The Preliminary Screening Requirement Regulations set out the regulatory authorities or designated regulatory agencies that are required to conduct a preliminary screening of a proposed development when they receive an application for a licence, permit or authorization. The Preliminary Screening Requirement Regulations are composed of two schedules setting out provisions in acts or regulations that are triggers for conducting a preliminary screening under the Mackenzie Valley Resource Management Act. Schedule 1 lists provisions of federal acts and regulations while schedule 2 lists provisions of Northwest Territories acts and regulations.

The Exemption List Regulations set out the proposals that are determined to have insignificant environmental impacts and which are exempt from preliminary screening if certain conditions are met.

The amendments update the legislative and regulatory references contained in the Preliminary Screening Requirement Regulations and the Exemption List Regulations to reflect the changed legislative and regulatory landscape that now exists as a result of devolution. These changes ensure that the requirements for preliminary screening remain unchanged despite the devolution-related legislative and regulatory changes.

A reference to paragraph 60(1.1)(a) of the Mackenzie Valley Resource Management Act was added to Schedule 1, Part 1, of the Preliminary Screening Requirement Regulations. This paragraph provides jurisdiction to the co-management boards of the Mackenzie Valley to issue, amend, renew, suspend and cancel water licences on lands outside a federal area in the Mackenzie Valley. This paragraph is limited to those processes that may have a significant environmental impact, that is, the issuance, amendment and renewal of licences. Subsection 60(1) of the Mackenzie Valley Resource Management Act speaks to the board’s jurisdiction within federal areas and was already listed in the Regulations; however, to reflect the amended Act, the reference will now be limited to the issuance, amendment and renewal of licences.

The Northwest Territories Devolution Act repealed the Northwest Territories Waters Act, and the Government of the Northwest Territories has enacted the Waters Act. The current references in the Preliminary Screening Requirement Regulations to the Northwest Territories Waters Act have been removed as the authorities to issue, amend, renew, suspend and cancel water licences in the Mackenzie Valley that were previously found in the Northwest Territories Waters Act are now found in paragraph 60(1.1)(a) of the Mackenzie Valley Resource Management Act for lands outside of federal areas. The Northwest Territories Devolution Act repealed the Northwest Territories Waters Act, and the Government of the Northwest Territories has enacted a Waters Act. The regulatory authority under the Waters Act (Northwest Territories) will not be issuing licences in the Mackenzie Valley, thus the Waters Act (Northwest Territories) does not need to be referenced in the Preliminary Screening Requirement Regulations.

The provisions relating to work or activity authorizations and the approval of development plans in the Oil and Gas Operations Act (Northwest Territories) will be added to Schedule 2, Part 1, of the Preliminary Screening Requirement Regulations. The Oil and Gas Operations Act (Northwest Territories) will apply to lands under the administration and control of the Commissioner of the Northwest Territories. The Canada Oil and Gas Operations Act will continue to apply to lands under the administration and control of Canada; as a result, the references in the regulations will remain unchanged.

The references to the Northwest Territories Reindeer Regulations have been removed from the Preliminary Screening Requirement Regulations as these Regulations have been repealed by the Northwest Territories Devolution Act. A reference to the Reindeer Regulations (Northwest Territories) has been made in Schedule 2, Part 2, of the Preliminary Screening Requirement Regulations. This change reflects the change in the administration and control from Canada to the Government of the Northwest Territories while ensuring that licences relating to grazing allotments within reserves continue to be subject to preliminary screenings under the Mackenzie Valley Resource Management Act.

The references in the Exemption List Regulations to the former Northwest Territories Waters Act have been removed and replaced with the similar provisions of the Waters Act (Northwest Territories). The former Northwest Territories Waters Act was repealed by the Northwest Territories Devolution Act; many of the requirements of the former act are now found in the Mackenzie Valley Resource Management Act for federal lands, while the requirements for lands outside federal areas is found in the Waters Act (Northwest Territories). The Waters Act (Northwest Territories) has been added to the Exemption List Regulations to ensure that the exemption of a requirement to undergo a preliminary screening does not apply to situations where there are potentially significant environmental impacts and a licence is required under the Waters Act (Northwest Territories).

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to this proposal, as there are no costs to small business.

Consultation

The amendments to the Preliminary Screening Requirement Regulations and the Exemption List Regulations have been discussed in principle with all stakeholders through consultations on the devolution agreement and the Northwest Territories Devolution Act. The final part of the devolution consultation process included consultation on the legislative initiatives from which this regulatory initiative flows.

Following the December 2013 introduction of Bill C-15, the Northwest Territories Devolution Act, consultations specific to the changes to the Preliminary Screening Requirement Regulations and the Exemption List Regulations were conducted in Yellowknife through the Devolution Legislative Working Group. This group consisted of the Government of Canada, the Government of the Northwest Territories, and Aboriginal organizations and government signatories to the Northwest Territories Devolution Agreement. Bilateral discussions were also held with the Government of the Northwest Territories to ensure that the amendments appropriately captured new territorial laws.

These discussions were supportive of the changes to the Preliminary Screening Requirement Regulations and the Exemption List Regulations.

Rationale

The Preliminary Screening Requirement Regulations set out the applications for licences, permits and authorizations that trigger a preliminary screening — the first step in an environmental impact assessment process in the Mackenzie Valley of the Northwest Territories. The Exemption List Regulations exempt developments with insignificant environmental impacts from the requirement to undergo a preliminary screening.

Without amendments, gaps would exist where certain projects that may have a significant environmental impact may not trigger a preliminary screening, as the licences, permits or authorizations required for the project would no longer be captured by the regulations.

Without amendments to the Preliminary Screening Requirement Regulations, there would be a risk that proposed developments may avoid being subject to preliminary screening as a result of the changed legislative and regulatory landscape following devolution. Consequently, proposed developments may avoid the scrutiny of a preliminary screening under the Mackenzie Valley Resource Management Act, leading to legal challenges that would delay proposed developments in the Mackenzie Valley and may, in turn, lead to increased costs to developers, damage to Aboriginal relations with government, and potential liability for damages.

The amendments to the Preliminary Screening Requirement Regulations ensure that proposed developments continue to undergo preliminary screenings — creating an environmental benefit by ensuring that proposed developments receive an appropriate review.

Also respecting preliminary screenings under the Mackenzie Valley Resource Management Act, the Exemption List Regulations exempt certain developments from the requirement to undergo a preliminary screening if certain conditions are met. One such condition that is repeated throughout the Exemption List Regulations is that the development “does not require a land use permit or a water licence under the Mackenzie Valley Resource Management Act, the Northwest Territories Waters Act [now repealed] or the Territorial Land Use Regulations.” As a result of the devolution of administration and control of lands and resources and the resulting legislative changes, these technical amendments to the Exemption List Regulations ensure that the list of exempted projects continues to exclude only those projects with insignificant environmental impacts from the requirement to undergo a preliminary screening and that the Exemption List Regulations do not unintentionally exempt projects from preliminary screening as a result of the repeal of the Northwest Territories Waters Act.

Contacts

Robyn Abernethy-Gillis
Resource Policy and Programs Directorate
Northern Affairs Organization
Aboriginal Affairs and Northern Development Canada
15 Eddy Street
Gatineau, Quebec
K1A 0H4
Telephone: 819-953-0690
Email: Robyn.AbernethyGillis@aadnc-aandc.gc.ca

Todd Keesey
Resource Policy and Programs Directorate
Northern Affairs Organization
Aboriginal Affairs and Northern Development Canada
15 Eddy Street
Gatineau, Quebec
K1A 0H4
Telephone: 819-934-6085
Email: Todd.Keesey@aadnc-aandc.gc.ca