Vol. 150, No. 13 — June 29, 2016

Registration

SOR/2016-130 June 13, 2016

MACKENZIE VALLEY RESOURCE MANAGEMENT ACT

Regulations Amending the Northwest Territories Waters Regulations

P.C. 2016-470 June 10, 2016

Whereas, pursuant to section 90.3 (see footnote a) of the Mackenzie Valley Resource Management Act (see footnote b), the Minister of Indian Affairs and Northern Development has consulted with the Gwich’in and Sahtu 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 section 90.3 (see footnote c) of the Mackenzie Valley Resource Management Act (see footnote d), makes the annexed Regulations Amending the Northwest Territories Waters Regulations.

Regulations amending the Northwest Territories Waters Regulations

Amendments

1 The long title of the Northwest Territories Waters Regulations (see footnote 1) is replaced by the following:

Mackenzie Valley Federal Areas Waters Regulations

2 Section 1 of the Regulations and the heading before it are repealed.

3 The definition Act in section 2 of the Regulations is replaced by the following:

Act means the Mackenzie Valley Resource Management Act; (Loi)

4 Section 4 of the Regulations is replaced by the following:

4 These Regulations apply in respect of federal areas that are within the water management areas established under section 3.

5 Subsection 5(3) of the Regulations is replaced by the following:

(3) A vessel, as defined in section 2 of the Canada Shipping Act, 2001, may deposit waste without a licence if the deposit of that waste is not prohibited under Part 9 of that Act.

6 Section 7 of the Regulations is replaced by the following:

7 The fee payable on the submission of an application for a licence or for an amendment, renewal, cancellation or assignment of a licence is $30.

7 (1) The portion of subsection 8(1) of the Regulations before paragraph (a) is replaced by the following:

8 (1) Subject to subsection (2), a licence issued under subsection 72.03(1) of the Act shall be a type B licence for one or more uses of water or deposits of waste set out in column I of any of Schedules IV to VIII, if any one of those uses or deposits

(2) Subsection 8(2) of the Regulations is replaced by the following:

(2) A licence issued under subsection 72.03(1) of the Act shall be a type A licence for one or more uses of water or deposits of waste set out in column I of any of Schedules IV to VIII, if any one of those uses or deposits meets a criterion set out in column IV thereof.

8 Subsection 10(1) of the Regulations is replaced by the following:

10 (1) The authorization of a board for the assignment of a licence referred to in section 72.14 of the Act may be obtained by submitting an application, accompanied by the fee set out in section 7, to the board established for the relevant water management area not less than 45 days before the date on which the applicant proposes to assign the licence.

9 (1) The portion of subsection 12(1) of the Regulations before paragraph (a) is replaced by the following:

12 (1) A board may fix the amount of security required to be furnished by an applicant under subsection 72.11(1) of the Act in an amount not exceeding the aggregate of the costs of

(2) The portion of subsection 12(2) of the Regulations before paragraph (a) is replaced by the following:

(2) In fixing an amount of security under subsection (1), a board may have regard to

(3) Paragraph 12(3)(c) of the Regulations is repealed.

10 Section 13 of the Regulations and the heading before it are repealed.

11 (1) Subsection 14(1) of the Regulations is replaced by the following:

14 (1) The register referred to in section 68 of the Act shall be in the form of one or more files in respect of each licence application.

(2) Paragraphs 14(2)(c) and (d) of the Regulations are replaced by the following:

12 Subsection 15(1) of the Regulations is replaced by the following:

15 (1) Every licensee shall maintain accurate and detailed books and records and shall submit a report each year to the board that issued the licence, on or before the anniversary of the date of issuance of the licence, setting out the quantity of water used under the licence and the quantity, concentration and type of any waste deposited under the licence.

13 Items 4 to 6 of Schedule I to the Regulations are replaced by the following:

6 All waters and river basins of the mainland draining into Hudson Bay

Coming into Force

14 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.)

Issues

The Northwest Territories Devolution Act came into force on April 1, 2014, and implemented the Northwest Territories Lands and Resources Devolution Agreement (the Agreement), as well as made a number of improvements to the natural resource regulatory regimes in the Northwest Territories. The Northwest Territories Devolution Act transferred administration and control of most territorial lands and resources to the Commissioner of the Northwest Territories. It also devolved 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. As a result, less than 10% of lands in the Northwest Territories are contained in “federal areas.” These include lands under the administration and control of a minister of the Government of Canada and waste sites as defined in the Agreement which are the responsibility of the Government of Canada.

The implementation of the Agreement required multiple legislative and regulatory changes to ensure that the legislation and regulations governing lands and resources in the Northwest Territories fully reflected the new federal and territorial jurisdictions and responsibilities. Operationally, this required the simultaneous repeal or amendment of federal legislation and regulations and enactment of corresponding territorial legislation and regulations. Among the regulations and legislation impacted by the implementation of the Agreement were the Northwest Territories Waters Regulations (the Regulations) and their enabling statute, the Northwest Territories Waters Act.

The Northwest Territories Devolution Act repealed the Northwest Territories Waters Act. At the same time, however, it provided that the Regulations (which were made under the repealed Act) remain in force as regulations deemed to have been made under the Mackenzie Valley Resource Management Act. The Regulations now require amendments in order to make them consistent with the Mackenzie Valley Resource Management Act. In particular

Background

Prior to the coming into force of the Northwest Territories Devolution Act, the use of water and the deposit of waste into waters in the Northwest Territories was regulated by the Northwest Territories Waters Act for the areas outside the Mackenzie Valley and a combination of the Mackenzie Valley Resource Management Act and the Northwest Territories Waters Act in the Mackenzie Valley. As a result of devolution, the authorities to regulate waters on Commissioner’s, First Nation and private lands were transferred to the Government of the Northwest Territories.

Consequently, the Northwest Territories Devolution Act repealed the Northwest Territories Waters Act and incorporated the majority of its provisions into the amended Mackenzie Valley Resource Management Act, for application on federal lands and federally managed waste sites, while the Government of the Northwest Territories enacted the substantially mirrored territorial Waters Act. This allowed the Minister of Indian Affairs and Northern Development to retain the authority for the management of waters in federal areas and federally managed waste sites in the Northwest Territories.

Objectives

Editorial and consequential changes to the Regulations are necessary to ensure consistency with amended legislation. The amendments ensure the new, reduced federal jurisdiction over water management in the Northwest Territories, as intended by the Northwest Territories Lands and Resources Devolution Agreement, is captured in the Regulations. The amendments also ensure that the provisions in the Regulations accurately reference their corresponding enabling provisions in the amended Mackenzie Valley Resource Management Act, as well as correcting references to the Canada Shipping Act, 2001.

Description

The Regulations are renamed Mackenzie Valley Federal Areas Waters Regulations to reflect the geographical application of the Regulations as a result of the Northwest Territories Devolution Act.

Schedule 1 of the Regulations is amended to remove outdated references to water management areas in Nunavut. References to the Regulations’ previous enabling legislation, the Northwest Territories Waters Act, are updated to reference their new enabling legislation, the Mackenzie Valley Resource Management Act.

References to the Canada Shipping Act in subsection 5(3) are replaced with updated references to provisions in the Canada Shipping Act, 2001.

The reference to an application made under section 31 of the Northwest Territories Waters Act in sections 7 and 13 of the Regulations is removed. Section 31 of the Northwest Territories Waters Act pertained to the authority of the federal minister to expropriate lands in the Northwest Territories prior to devolution. This authority was not transferred into the Mackenzie Valley Resource Management Act as the federal minister only retained responsibilities for federal lands and federally managed waste sites post devolution. As this authority was not retained by the federal minister, provisions related to it in the Regulations are repealed.

“One-for-One” Rule

The “One-for-One” Rule does not apply. The amendments are editorial in nature; there is no change in administrative costs to business.

Small business lens

The small business lens does not apply, as there are no costs on small businesses.

Consultation

The proposed amendments to the Regulations were discussed in principle with all interested parties, including the Government of the Northwest Territories and indigenous organizations and governments, through consultations on the Northwest Territories Lands and Resources Devolution Agreement and the Northwest Territories Devolution Act. The final element of the devolution consultation process included consultation on the legislative initiatives from which this regulatory initiative flows.

On December 9, 2015, a draft of the proposed amendments to the Regulations was distributed to groups and individuals with interests in the Mackenzie Valley. While the distribution was targeted to indigenous 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 industry groups (Northwest Territories/Nunavut Chamber of Mines, Canadian Association of Petroleum Producers, Mining Association of Canada, Canadian Energy Pipeline Association and Prospectors and Developers Association of Canada) and other indigenous groups with transboundary interests in the Mackenzie Valley (Manitoba and Athabasca Denesuline, Dene Tha’ First Nation, Liard First Nation and Na-Cho Nyak Dun First Nation). The contacted groups and individuals were given until March 1, 2016, to provide their comments.

Only one comment was provided to Indigenous and Northern Affairs Canada. This comment, which pertained to the regulatory drafting technique used for one proposed provision, was received from the land and water boards of the Mackenzie Valley. An explanation was given as to why the provision was drafted in such a manner.

Rationale

After the devolution of land and resources management responsibilities from the Government of Canada to the Government of the Northwest Territories, the Regulations were impacted as their previous enabling legislation was repealed and replaced by the Mackenzie Valley Resource Management Act. Although the Regulations were deemed to remain in force by the Northwest Territories Devolution Act, they continue to have multiple provisions referencing legislative authorities that were repealed on April 1, 2014.

These amendments are required to ensure the smooth functioning of the federal water management regime in the Mackenzie Valley of the Northwest Territories. The amendments correct the outdated legislative references within the Regulations. The amendments also update the new geographical application of the Regulations as intended by the Northwest Territories Lands and Resources Devolution Agreement. The amendments would ensure the accuracy of laws and regulations with respect to federal water management responsibilities.

Implementation, enforcement and service standards

There are no additional regulatory requirements introduced along with these amendments. Existing resources are sufficient for the implementation and enforcement of the amended Regulations.

Contact

Gilles Binda
Senior Advisor
Resource Policy and Programs
Natural Resources and Environment Branch
Northern Affairs Organization
Indigenous and Northern Affairs Canada
15 Eddy Street, Room 10F7
Gatineau, Quebec
K1A 0H4
Telephone : 613-290-3845
Fax: 819-934-0584
Email: Gilles.Binda@aadnc-aandc.gc.ca