Vol. 147, No. 21 — October 9, 2013

Registration

SOR/2013-166 September 30, 2013

MACKENZIE VALLEY RESOURCE MANAGEMENT ACT

Regulations Amending the Mackenzie Valley Land Use Regulations

P.C. 2013-972 September 27, 2013

Whereas, pursuant to section 90 (see footnote a) of the Mackenzie Valley Resource Management Act (see footnote b), the Minister of Indian Affairs and Northern Development has consulted with First Nations and the Tlicho Government regarding the annexed Regulations;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Indian Affairs and Northern Development, pursuant to sections 59 (see footnote c), 71, 72, 86 and 90^a of the Mackenzie Valley Resource Management Act^b, makes the annexed Regulations Amending the Mackenzie Valley Land Use Regulations.

REGULATIONS AMENDING THE MACKENZIE VALLEY LAND USE REGULATIONS

1. The definition “voie d’accès” in section 1 of the French version of the Mackenzie Valley Land Use Regulations (see footnote 1) is replaced by the following:

« voie d’accès » Bande défrichée donnant accès à une terre et utilisée pour l’exécution de levés géophysiques ou géologiques ou de travaux préliminaires de génie civil. (line)

2. Section 3 of the Regulations and the heading before it are repealed.

3. (1) Subparagraph 4(a)(iv) of the Regulations is replaced by the following:

• (iv) the use of a self-propelled motorized machine for moving earth or clearing land, or

(2) Subparagraph 4(b)(i) of the English version of the Regulations is replaced by the following:

• (i) the use of motorized earth-drilling machinery the operating weight of which, excluding the weight of drill rods, stems, bits, pumps and other ancillary equipment, equals or exceeds 2.5 t, for a purpose other than the drilling of holes for building piles or utility poles or the setting of explosives within the boundaries of the local government,

(3) Subparagraph 4(b)(iv) of the English version of the Regulations is replaced by the following:

• (iv) the use of a stationary motorized machine, other than a power saw, for hydraulic prospecting, moving earth or clearing land.

4. Subparagraph 5(b)(i) of the English version of the Regulations is replaced by the following:

• (i) the use of motorized earth-drilling machinery the operating weight of which, excluding the weight of drill rods, stems, bits, pumps and other ancillary equipment, equals or exceeds 500 kg but is less than 2.5 t, for a purpose other than the drilling of holes for building piles or utility poles or the setting of explosives within the boundaries of a local government, or

5. (1) Paragraph 6(a) of the English version of the Regulations is replaced by the following:

• (a) conduct a land-use operation within 30 m of a known monument or of a known or suspected historical or archaeological site or burial site;

(2) Paragraph 6(b) of the English version of the Regulations is amended by replacing “high water mark” with “high-water mark”.

(3) Paragraph 6(d) of the Regulations is replaced by the following:

• (d) place a fuel or supply cache within 100 m of a watercourse at a point that is below the ordinary high-water mark of that watercourse.

6. Subsection 9(1) of the Regulations is repealed.

7. The heading before section 12 of the Regulations is replaced by the following:

HISTORICAL OR ARCHEOLOGICAL SITES AND BURIAL SITES

8. Subsection 14(2) of the Regulations is repealed.

9. Section 16 of the Regulations is amended by adding the following after subsection (3):

(3.1) On the expiry of an authorization issued under subsection (2), the Board may, on written request, issue a maximum of one subsequent authorization for a period of up to one year for the same operation.

10. (1) Subparagraph 18(a)(iii) of the French version of the Regulations is replaced by the following:

• (iii) la personne qui conclut le contrat d’exécution du projet, lorsque le droit est détenu par deux ou plusieurs personnes qui n’ont pas conclu d’entente de prospection ou d’exploitation désignant l’une d’elles comme administrateur du projet;

(2) Paragraph 18(b) of the Regulations is replaced by the following:

• (b) in any other case, has a right to occupy the land and either contracts to have the land-use operation carried out or is the person who is to carry out the operation.

11. (1) Subsection 19(2) of the Regulations is replaced by the following:

(2) An application for a permit shall be in the form, and provide the information, set out in Schedule 2 and shall be accompanied by any information in the possession of the applicant that is necessary to evaluate the quantitative and qualitative effects of the proposed use.

(2) Subparagraph 19(3)(b)(iv) of the Regulations is replaced by the following:

• (iv) bridges, dams, ditches, railroads, roads, transmission lines, pipelines, survey lines, monuments, historical or archaeological sites, burial sites, air landing strips, watercourses, traplines and cabins that may be affected by the land-use operation.

12. (1) Subsection 21(1) of the Regulations is repealed.

(2) The portion of subsection 21(2) of the Regulations before paragraph (a) is replaced by the following:

(2) Before the issuance of a permit, the inspector is authorized to enter the lands designated in the application to investigate and report to the Board the particulars of

13. (1) Paragraph 22(1)(a) of the English version of the Regulations is replaced by the following:

• (a) if the application does not comply with these Regulations, return the application to the applicant and advise the applicant in writing of the reasons for its rejection; or

(2) Paragraph 22(1)(b) of the Regulations is replaced by the following:

• (b) in any other case, notify the applicant in writing of the date on which the application was found by the Board to be in compliance with these Regulations and of the fact that the Board will take, subject to sections 23.1 and 24, one of the measures referred to in subsection (2) within 42 days after that date.

14. (1) Paragraph 23(a) of the English version of the Regulations is replaced by the following:

• (a) if the application does not comply with these Regulations, without delay return the application to the applicant and advise the applicant in writing of the reasons for its rejection; or

(2) The portion of paragraph 23(b) of the Regulations before subparagraph (i) is replaced by the following:

• (b) in any other case, subject to sections 23.1 and 24, within 30 days after the date on which the application was found by the Board to be in compliance with these Regulations,
  

15. (1) Paragraph 26(1)(j) of the Regulations is replaced by the following:

• (j) protection of historical or archaeological sites and burial sites;

(2) Paragraph 26(1)(q) of the Regulations is replaced by the following:

• (q) any other matter in respect of the protection of the biological or physical characteristics of the lands.

(3) Subsection 26(4) of the English version of the Regulations is amended by replacing “land-use” with “land use”.

16. (1) Paragraph 29(2)(b) of the Regulations is replaced by the following:

• (b) drawn from and accompanied by a detailed site survey, an aerial photograph or an image created using satellite or other imaging technology, showing the lands on which the land-use operation was conducted.
  

(2) Subsection 29(5) of the English version of the Regulations is replaced by the following:

(5) Within three weeks after receipt of written notice from the Board rejecting a plan, a permittee shall submit to the Board a new final plan that complies with this section and section 30.

17. Paragraph 30(c) of the Regulations is replaced by the following:

• (c) show locations by geographic or GPS co-ordinates.
  

18. Subsection 32(4) of the Regulations is replaced by the following:

(4) Posted security may be in the form of

• (a) a promissory note guaranteed by a bank listed in Schedule I or II to the Bank Act and made payable to the Receiver General;
• (b) a certified cheque drawn on a bank listed in Schedule I or II to the Bank Act and made payable to the Receiver General;
• (c) a performance bond approved by the Treasury Board for the purposes of paragraph (c) of the definition “security deposit” in section 2 of the Government Contracts Regulations;
• (d) an irrevocable letter of credit from a bank listed in Schedule I or II to the Bank Act; or
• (e) a cash payment.
  

19. Subsections 34(2) and (3) of the Regulations are replaced by the following:

(2) Before taking action in respect of a contravention under subsection 86(2) of the Act in respect of a drilling program between the time of spud-in and the completion of drilling, the inspector shall consult with the National Energy Board.

(3) A copy of any notice provided under this section or order made under subsection 86(2) of the Act shall be delivered to the landowner and filed with the Board.

20. (1) Paragraph 35(1)(b) of the Regulations is replaced by the following:

• (b) fails to comply with an order of the inspector under section 86 of the Act,

(2) Subsection 35(4) of the Regulations is replaced by the following:

(4) If the Board is satisfied that the permittee has corrected or will correct the contravention under subsection 34(1), it shall, by written notice to the permittee, lift the suspension of the permit.

21. Subsection 36(1) of the Regulations is replaced by the following:

36. (1) If a permittee fails to correct the contravention set out in the notice of suspension issued under subsection 35(1), or if the Board is of the opinion that the severity of the contravention so warrants, the Board may, after written notice to the permittee, cancel the permit.

22. (1) Paragraph 38(2)(b) of the French version of the Regulations is replaced by the following:

• b) les nom et adresse du cessionnaire proposé;

(2) Paragraph 38(2)(c) of the Regulations is replaced by the following:

• (c) a description of any other interests or rights that are held by, or are to be transferred to, the proposed assignee and that are required by the proposed assignee to obtain a permit under section 18;

(3) Paragraphs 38(2)(d) and (e) of the French version of the Regulations are replaced by the following:

• d) un engagement signé du cessionnaire proposé portant qu’il accepte d’assumer toutes les obligations qui incombent au titulaire en vertu du permis, du présent règlement ou de la Loi;
• e) un engagement signé du cessionnaire proposé portant qu’il accepte de fournir la garantie versée par le cédant lors de la délivrance du permis;

23. (1) Paragraph 40(2)(b) of the French version of the Regulations is replaced by the following:

• b) tous les dossiers sur les enquêtes publiques tenues au sujet de la demande;

(2) Paragraph 40(2)(d) of the Regulations is replaced by the following:

• (d) all correspondence and documents in respect of compliance with the conditions of any permit issued in respect of the application.

(3) Subsection 40(3) of the Regulations is repealed.

24. Section 41 of the Regulations is replaced by the following:

41. Subject to section 20, the amounts set out in column 2 of Schedule 1 are payable in respect of the fees described in column 1 of that Schedule.

25. Schedule 1 to the Regulations is amended by replacing the references after the heading “SCHEDULE 1” with the following:

(Subsection 19(3), section 20, subsection 38(2) and section 41)

26. The heading of column 1 of Schedule 1 to the Regulations is replaced by “Fee”.

27. Items 4 and 5 of Schedule 1 to the Regulations are repealed.

28. Schedule 2 to the Regulations is amended by replacing the heading “INFORMATION IN SUPPORT OF AN APPLICATION FOR A LAND USE PERMIT” with “INFORMATION IN SUPPORT OF AN APPLICATION FOR A LAND-USE PERMIT”.

29. Section 1 of Schedule 2 to the Regulations is amended by replacing “Nom et adresse du demandeur” with “Nom et adresse postale du demandeur”.

30. Section 8 of Schedule 2 to the Regulations is amended by replacing “Le tracé a-t-il été établi et le terrain nivelé?” with “Le tracé a-t-il été établi ou le terrain nivelé?”.

31. Section 15 of Schedule 2 to the Regulations is amended by replacing “valide pour une durée de cinq ans” with “valide pour une durée maximale de cinq ans”.

COMING INTO FORCE

32. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue

To address issues raised during a review of the Mackenzie Valley Land Use Regulations by the Standing Joint Committee for the Scrutiny of Regulations (the Committee).

Background

Aboriginal Affairs and Northern Development Canada has the ongoing responsibility to maintain the clarity and effectiveness of regulations made pursuant to the Mackenzie Valley Resource Management Act. A number of amendments to the Mackenzie Valley Land Use Regulations have been recommended to address issues raised during a review of the Regulations by the Committee. The issues raised by the Committee cover a broad range of provisions but are essentially technical in nature.

These amendments do not have any effect on the application of the Regulations with the exception of the increase in the time period for the issuance of Type B and Type C land use permits. The increase in the time period, from 15 days to 30 days, addresses the requirements of subsections 63(2) and (3) of the Mackenzie Valley Resource Management Act which require a reasonable period of time to be provided for representations to be made to a land and water board regarding an application for a permit.

Objectives

The Committee reviewed the Mackenzie Valley Land Use Regulations and identified a number of issues that required amendments to the Regulations. There were 14 amendments to address inconsistencies between the English and French text of the Regulations, 16 pertaining to the authorities provided in the Mackenzie Valley Resource Management Act and 2 to address issues of subdelegation of powers not allowed by the Mackenzie Valley Resource Management Act. In addition, there are also 5 amendments which modernize outdated terminology, 2 of which were suggested by northern stakeholders during consultations.

The Committee also questioned the reasonability of the 15-day time period for representations to be made to a land and water board to issue a permit under subsections 63(2) and (3) of the Mackenzie Valley Resource Management Act.

Description

In June 2006, the Committee reviewed the Mackenzie Valley Land Use Regulations which are made pursuant to section 90 of the Mackenzie Valley Resource Management Act. The Committee routinely reviews regulations to ensure consistency with the enabling authorities and between the two official language versions. As a result of the review of the Mackenzie Valley Land Use Regulations, 32 issues were raised by the Committee. Aboriginal Affairs and Northern Development Canada officials with support from the Department of Justice Canada have considered and responded to the issues raised by the Committee and in some cases recommended a number of amendments to the Mackenzie Valley Land Use Regulations. The changes are non-substantive and do not affect the application of the Regulations with the exception of the increase in the time period for the issuance of Type B and Type C land use permits.

“One-for-One” Rule

The “One-for-One” Rule does not apply. There are no administrative costs or savings achieved with these amendments.

Small business lens

The small business lens does not apply. There is no cost to small business associated with these amendments.

Consultation

In July 2010, a consultation document on proposed amendments to the Mackenzie Valley Land Use Regulations was distributed to groups and individuals with interests in the Mackenzie Valley. While the distribution was targeted to Aboriginal groups in the Mackenzie Valley, the Mackenzie Valley Environmental Impact Review Board, the land and water boards in the Mackenzie Valley, the Government of the Northwest Territories and the Tlicho Government, the document was also sent to the National Energy Board, industry groups, non-governmental organizations and other Aboriginal groups with transboundary interests in the Mackenzie Valley.

The amendments are intended to address issues raised by the Committee. The issues raised by the Committee covered a broad range of provisions but were essentially technical in nature. Comments on the proposed amendments were requested to be provided by October 22, 2010.

Comments were received from the Government of the Northwest Territories, the Mackenzie Valley Environmental Impact Review Board, the Mackenzie Valley Land and Water Board, the Gwich’in Renewable Resources Board and the North Slave Metis Alliance.

The comments received were generally supportive of the proposed amendments to address the Committee issues.

Several of the comments suggested keeping section 3 and subsection 9(1) of the Mackenzie Valley Land Use Regulations as reminders to proponents of the requirement to comply with all applicable laws even though the provisions are redundant. There were also a number of comments related to French translations of terms like “shall” and “public hearing.”

Almost all the respondents included comments on the proposed change to the number of days allowed for the issuance of a Type B or Type C land use permit. Generally, the comments recognized that a longer period of time would be preferable to allow the land and water boards to perform their duties in accordance with the Mackenzie Valley Resource Management Act.

Other comments were related to

1. The reinstating of permits — The Regulations contained a permissive provision where a land and water board may lift the suspension of the permit once a contravention has been corrected. It was suggested that, once a contravention has been corrected, a land and water board should be obligated to lift the suspension. This has been addressed as the new Regulations propose language to clearly state that a land and water board shall, by written notice to the permittee, lift the suspension of the permit once it is satisfied that the permittee has or will correct the contravention.
2. The authority for inspectors to enter and inspect lands — The Regulations did not explicitly authorize inspectors to enter lands. A provision to address these concerns has been added in the new Regulations.

Minor concerns regarding language were taken into consideration during the drafting of the Regulations Amending the Mackenzie Valley Land Use Regulations.

This proposal was prepublished in Part I of the Canada Gazette on April 6, 2013, for a consultation period of 30 days. No comments were received from Aboriginal groups, stakeholders or the public in general.

Rationale

These amendments are made at the request of the Standing Joint Committee for the Scrutiny of Regulations to remove ambiguities and to ensure clarity and consistency within the Mackenzie Valley Land Use Regulations and with the Mackenzie Valley Resource Management Act.

Implementation, enforcement and service standards

The amendments come into force on the day on which they are registered. At the time of registration, letters are sent out to all those organizations contacted during the consultation process to inform them of the coming into force of the Regulations.

Contacts

Gilles Binda
Senior Advisor
Resource Policy and Programs
Natural Resources and Environment Branch
Northern Affairs Organization
Aboriginal Affairs and Northern Development Canada
Telephone: 819-934-7513
Email: Gilles.Binda@aadnc-aandc.gc.ca

Jeff Holwell
Senior Analyst
Lands Transactions
Land and Water Management Directorate
Northern Affairs Organization
Aboriginal Affairs and Northern Development Canada
Telephone: 819-997-9243
Email: Jeffrey.Holwell@aadnc-aandc.gc.ca

• Footnote a
  S.C. 2005, c. 1, s. 50
• Footnote b
  S.C. 1998, c. 25
• Footnote c
  S.C. 2005, c. 1, s. 33
• Footnote 1
  SOR/98-429