improvements to northern regulatory regimes...development of a model that will be shared with...

Improvements to Northern Regulatory Regimes

Information Sessions – January 2013

The Northern Regulatory Regime Context

• The northern regulatory regimes have developed from a different context to the provinces:

• NWT and Nunavut - Minister of AAND has extensive province-like responsibilities for land and resource management

• Yukon - these responsibilities have been devolved to the territorial government however EA legislation is federal

• Regulatory regimes founded on constitutionally protected land claim agreements, that include co-management boards with Aboriginal governments/ organizations and economic, environmental and social provisions

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Supporting Responsible Resource Development is a priority for Canada

• Canada’s North has tremendous natural resource potential that can be unlocked to stimulate jobs and economic growth

• However, the NWT’s investment climate is being held back

• 2011 Real Gross Domestic Product growth in the NWT lagged (NWT -5.5%, Yukon 5.6%, Nunavut 7.7%, Canada 2.6%)

• Recognition by all parties that the regulatory system could be improved

• EAs in the North take 15 months in Yukon, 17 months in Nunavut and 34 months in NWT

• Government of Canada has already demonstrated a strong commitment to Northern regulatory improvement

• McCrank Report highlighted the challenges in the system (released 2008)

• Action Plan to Improve Northern Regulatory Regimes (announced 2010)

• Chief Federal Negotiator (John Pollard) responsible for consolidation of the Mackenzie Valley land and water regulatory structure in the NWT since 2010

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2010 Action Planto Improve Northern Regulatory Regimes

LEGISLATION / REGULATION

New Nunavut Planning and Project Assessment Act

New NWT Surface Rights Board Act

Amendments to:Mackenzie Valley Resource Management Act(*includes restructuring)NWT Waters ActYukon Surface Rights Board Act

Regulation changesTerritorial Land Use RegulationsTerritorial Quarrying RegulationsNWT Waters RegulationsMackenzie Valley Land Use RegulationsNunavut Water Regulations (new)

ENVIRONMENTAL MONITORINGEnvironmental Monitoring Programs:

NWT Cumulative Impact Monitoring Program

Nunavut General Monitoring Plan

STRONG ABORIGINAL VOICEBuilding on already established relationships with

Aboriginal groups

Ensuring that land claim agreements are respected

Maintaining meaningful Aboriginal involvement

*also announced was the appointment of a Chief Federal Negotiator to consolidate the four land and water boards of the NWT

Minister Proposes Additional Actions

• In November 2, 2012 letter, Minister of Aboriginal Affairs and Northern Development Canada (AANDC) outlined additional improvements to the Northern regulatory regime, building on the 2010 Action Plan

• On November 16, 2012, the Minister provided further information on these additional changes through a series of speeches, meetings, and a press release.

• These proposed actions are intended to work towards aligning regulatory regimes across the country

• Depending on land claim agreements, policy research and other factors, we may not be able to achieve all of the proposed changes

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Key Priorities for Change

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Strengthening environmental protection• Review and modify the fines and penalties associated with the environmental impact

assessment and land and water regulatory processes in the NWT and Nunavut • Create new legislative authority for regional studies in the MVRMA and YESAA• Include an EIA decision statement scheme in the MVRMA• Implement a new Administrative Monetary Penalties scheme for NWT and Nunavut• Provide MVEIRB with the authority for a public registry in legislation

Consultations with Aboriginals• Clarify roles and responsibilities of various entities involved in northern regulatory

regimes, with early targeted focus on the Northwest Territories• Develop consultation protocols or Memoranda of Understanding with territorial

governments• Consider including authority within the MVRMA to enable Governor-in-Council to create

regulations regarding consultation

Key Priorities for Change

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CEAA Review Panel

Pre-Panel Phase:Referral and Preparation

Panel Phase:Prepare for and hold hearings Post-Panel Phase

Standard EA:EA Review

and Ministerial Approval

Panel Phase:Prepare for and hold hearings

Post-Panel Phase

24 months total

NEB Review Process 18 months total

max 12 months

21 months total

EA Review with Hearings for Nunavut, NWT and Yukon

Joint Review Panel for Nunavut, NWT and Yukon

Pre-Panel Phase:Referral and Preparation


Post-Panel Phase

24 months total


Post-Panel Phase

New Proposed Timelines

EA Review without Hearings for Nunavut, NWT and Yukon

Exploring Further Legislative and Regulatory Initiatives

• In proposing these new measures Canada will:

• uphold its obligations included in comprehensive land claims, self-government agreements and existing legislation

• continue to respect the co-management approach to lands and resources in Canada’s three territories

• continue to engage and consult Northern governments and Aboriginal governments and organizations

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• Given the scope of changes, work has already commenced:

• Drafting and consultation on a number of bills is complete. Bill C 47, the Northern Jobs and Growth Act (NuPPAA, NWT Surface Rights Board Act and Yukon Surface Rights Board Act) was introduced November 6, 2012

• Internal policy work has begun on further acts – drafting will begin as soon as possible and consultation will follow

• Departmental staff will continue to share detailed information on all of these proposed changes for comments and questions

• Communications and consultations will be ongoing throughout the process

• Canada will continue to move forward with changes to the Northern regulatory regime in order to foster a more conducive environment for developing the resource economy. These changes are intended to ensure certainty, predictability and timeliness, which will remove barriers to investment and contribute to the Government’s jobs and growth agenda.

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Next Steps

Annex

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Nunavut

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ANNEX A

Northern Jobs and Growth Act

Nunavut Planning and Project Assessment Act

• The Nunavut Land Claims Agreement (the Agreement) requires the creation of legislation for land use planning (Article 11 of the Agreement) and environmental impact assessment (Article 12 of the Agreement)

• The Nunavut Planning Commission (the Commission) and the Nunavut Impact Review Board (the Board) have been working under the provisions of the Agreement since 1996

• This bill fulfils an outstanding legislative obligation of the federal government related to the Agreement

• Bill C-25, the Nunavut Planning and Project Assessment Act was introduced on May 12, 2010, where it remained on the Order Paper awaiting second reading until Parliament was dissolved on March 26, 2011. It was introduced on November 6, 2012 as part of Bill C-47

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ANNEX A


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ANNEX A

Public Reviews of Water Licences

• 12 month timeline for licences where hearings are held (45 day limit for Ministerial decision-making with possible 45 day extension within 12 month timeline)

• Minister may extend review timelines by 2 months• Governor-in-Council may further extend review timeline

Timelines applicable do not include proponent time

Life of project water licenses

• Allow the Nunavut Water Board to approve life of project terms for type A licences to reduce redundant periodic review

Proposed Changes - Nunavut Waters and Nunavut Surface Rights Tribunal Act

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ANNEX A

Allow for a regulation-making authority for cost recovery

• Provide for the recovery of costs from proponents on major developments undergoing a public review by the Nunavut Water Board

• Government will recover costs for review activities, such as hearings and travel, as well as other costs attributable to the reviews.

Modify the fines associated with the water regulatory processes

• Ensure that the fines are in line with other federal environmental protection legislation, including proposed changes under Responsible Resource Development

• Fines will be set in consultation with the Department of Justice and will be increased no greater than $500,000


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ANNEX A

Add the authority for Administrative Monetary Penalties

• Establish administrative monetary penalty systems that include enabling authority for the Minister to make regulations for implementing an administrative monetary penalties system

• Maximum amounts for these penalties of $25,000 for individuals and $100,000 for organizations are under consideration

Address double-bonding concerns

• Double bonding of mine site reclamation liability occurs when the financial assurance or security provided by mining project proponents exceeds the total estimated costs of reclaiming and decommissioning mining sites or other large operations

• Enable the Minister to enter into agreements with private land owners for the holding, allocating and accessing of reclamation security

• Coordinate security requirements between Inuit organizations and the Crown where both are involved in the provision of security


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ANNEX A

Proposed Changes - Territorial Lands Act




Modify the fines contained within the Act



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ANNEX A

Proposed Changes – Regulatory Changes

Regulatory changes announced in 2010 under Action Plan for Nunavut

• Territorial Land Use Regulations • amendments will better align some of the provisions with other land

management regulations in the North• Territorial Quarrying Regulations

• Amendments are mainly administrative in nature, also includes things like changing the length of the term of a quarry permit from one year to three years, including the word Nunavut in the Regulation, bringing greater certainty to who has exclusive rights to carving stone in Nunavut

• New Nunavut Waters Regulations• a set of water regulations for Nunavut that will take into consideration the

specific provisions of the Nunavut Land Claims Agreement • Expected for Gazette I on December 15th, 2012

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ANNEX A

Proposed Approach – Aboriginal Consultation

Guidance on Aboriginal consultation roles and responsibilities

• Clarify and outline the consultation roles and responsibilities of federal departments and agencies involved in the EA and regulatory process through the development of a model that will be shared with stakeholders

• Map the consultation roles and responsibilities of entities involved in the regulatory process, particularly for EAs (while the initial focus will be in the Northwest Territories, this mapping initiative will be expanded to Nunavut and Yukon)

• Once the model and mapping initiative are complete, AANDC may develop territory-specific guides that outline the consultation roles and responsibilities of the federal and territorial Crown, resource management boards and other bodies in relation to a variety of resource development projects

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ANNEX A


Develop consultation protocols and/or Memoranda of Understanding between Canada and the territorial government to align federal and territorial consultation processes

• This approach would enable the Crown (both federal and territorial) to conduct Aboriginal consultation and accommodation in an efficient, cooperative and timely manner, using and relying on environmental assessment and regulatory processes, to the extent practicable

Northwest Territories

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ANNEX A

2010 Action Plan

Under the Action Plan, announced in 2010, key proposed changes for the NWT included:

• New NWT Surface Rights Board Act

• Amendments to the MVRMA• Timelines• Policy direction• Board restructuring

• Amendments to NWT Waters Act

• Changes to Territorial Land Use Regulations, Territorial Quarring Regulations, NWT Waters Regulations, and the Mackenzie Valley Land Use Regulations

• Cumulative Impact Monitoring program

• A strong Aboriginal voice

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ANNEX A


Northwest Territories Surface Rights Board Act

• The NWT Surface Rights Board Act was introduced on November 6, 2012 as part of Bill C-47

• Northwest Territories Surface Rights Board Act will establish a board to resolve disputes between holders of surface or subsurface rights and the owner or occupant of the surface when an agreement on terms, conditions and compensation for access cannot be reached by the parties

• The purpose of the Board is to resolve matters in dispute over the terms and conditions of access, and the compensation to be paid in respect of that access, relating to Gwich’in lands, Sahtu lands, Tlicho lands, Inuvialuit lands or other lands, such as privately owned lands or where there is an occupaont on Commissioner’s or Crown land in the Northwest Territories

• Related amendments to the Yukon Surface Rights Board Act will create greater consistency with the Northwest Territories Surface Rights Board Act

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ANNEX A


Northwest Territories Surface Rights Board Act

• The board will consist of five to nine members, plus five alternates. All members and alternates will be appointed by the Minister of Aboriginal Affairs and Northern Development

• All hearings will be held by panels of three, unless there is agreement by both parties for a one member panel

The board will

• Render binding decisions (orders) for settlement and non-settlement lands. Decisions are final and cannot be appealed (ability for judicial review remains)

• Make orders setting out the terms and conditions on which the access can be exercised and determine the compensation to be paid in respect to that access and can award costs to parties to a hearing (if appropriate)

• On application, determine compensation for unforeseen damage resulting from access

• Periodically review orders (every five years or upon request) and terminate access orders (in certain circumstances)

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ANNEX A

Proposed Changes - Mackenzie Valley Resource Management Act

Establish fixed “beginning to end” timelines for public reviews by the Mackenzie Valley Environmental Impact Review Board or review panel

• 12 months for environmental assessments without hearings - Including 3 month Ministerial decision-making timeline

• 21 months for environmental assessments with hearings - Including 5 month Ministerial decision-making timeline

• 24 months for environmental impact reviews and joint reviews - Including 6 month Ministerial decision-making timeline

Timelines do not include proponent time

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ANNEX A


Establish a 10 day pause period between conclusion of the screening of a project where a referral to environmental assessment is not proposed and the issuance of licences, permits and authorizations (or the project proceeding as is) is recommended. This will allow for other organizations to review the project and the outcome of the screening, to determine if a referral is merited

Expansion of the Minister’s ability to give binding policy direction to all MVRMA boards

• Provide ability to give direction to the MVEIRB and the Gwich’in and Sahtu land use planning boards (land and water boards already can be given policy direction)

• Will allow government to communicate expectations in achieving policy objectives• The Minister would be obligated to consult with the relevant boards in advance of

providing policy direction.• Does not apply to active projects

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ANNEX A


Land and water board restructuring

• consolidate the current land and water board structure in the Mackenzie Valley into one board

• the new, restructured land and water board would be an institution of public government made up of equal membership from Aboriginal and government nominees, not including the chairperson, consistent with the settled land claim agreements in the Mackenzie Valley

• the restructured board will maintain the co-management foundation of the land permitting and water licensing process; and regulate land and water in the Gwich’in, Sahtu, Tlicho, Dehcho and the South Slave

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ANNEX A






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ANNEX A


Consolidation of federal decision-making functions for environmental impact assessments

• Delegate to the Minister of AAND all responsibilities of other federal ministers for decision making with respect to environmental impact assessments

• The delegated Minister would be required to consult with other federal ministers with jurisdictional responsibilities for projects

Review lists of projects and thresholds that trigger environmental assessment in the Mackenzie Valley, against federal and provincial assessment triggers

Review project inclusion and exclusion regulations

• Review preliminary screening and exemption list regulations to assess thresholds that trigger environmental assessment processes

• Assess comparability with other Canadian provincial jurisdictions, to ensure appropriate thresholds, as there is only one environmental impact assessment regime in the Mackenzie Valley

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ANNEX A


Extension of Review Board member terms

• Provide for the extension of MVEIRB member terms to ensure quorum is maintained on public reviews

• On completion of the review, the board member’s temporary extension would end

Clarify role of Canadian Nuclear Safety Commission and National Energy Board in the MVRMA

• Add the CNSC as designated regulatory agency in the Mackenzie Valley• Remove the authority for referral to a joint MVEIRB – DRA panel review under the

MVRMA


• Allow the Mackenzie Valley Land and Water Board (or a regional panel thereof) to approve life of project terms for type A licences to reduce redundant periodic review

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ANNEX A



• Provide for the recovery of costs from proponents on major developments undergoing a public review by the MVEIRB and restructured land and water boards


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ANNEX A


Modify the fines associated with the environmental impact assessment and land and water regulatory processes



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ANNEX A


Development of an environmental impact assessment decision statement scheme for the Mackenzie Valley

• Create an enforceable decision statement scheme for decisions following environmental assessment and environmental impact reviews

• Scheme will resemble proposed Nunavut Planning and Project Assessment Act• Decision statements may include all approved mitigation measures, proponent

commitments (as appropriate), and, in the case of environmental impact reviews, follow-up obligations

• It is being considered that it would be an offence to proceed with a development without a decision statement, to violate the conditions of a decision statement, or to provide misleading information

• It is being considered that the Minister would be able to appoint federal officers to inspect developments for compliance with decision statements

• It is being considered that penalties for offences would include fines and court-ordered penalties and would be in line with those set out in the Canadian Environmental Assessment Act, 2012, for its decision statement scheme

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ANNEX A


Add legislative authority for regional studies in the Mackenzie Valley

• Make additional information available by providing for the conduct of regional studies at the discretion of and under the direction of the Minister of AAND

• Environmental impact assessments established under legislation would still take place, but regional studies would inform these processes, making them more timely and effective

• Regional studies would be made public and, review and land use planning boards would have the discretion to consider regional studies, when conducted

• Allow for cooperative regional studies across boundaries to apply

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ANNEX A





Public registry for the Mackenzie Valley Environmental Impact Review Board

• Maintain a public registry for information it receives and produces regarding environmental impact assessments

• Would be similar in nature to the public registry established under s. 72 of the Act for the land and water board

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ANNEX A


Consider allowing for regulation-making authority related to consultation in the Mackenzie Valley Resource Management Act.

• The authority would enable the Governor-in-Council to make regulations that articulate the consultation roles and responsibilities of the Crown and co-management boards in resource development in the Mackenzie Valley

• The development of regulations would help to set clear expectations on roles and responsibilities within the consultation process.

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ANNEX A

Proposed Changes - Territorial Lands Act




Modify the fines contained within the Act



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ANNEX A

Proposed Changes - NWT Waters Act




Timelines applicable do not include proponent time


• Allow the Mackenzie Valley Land and Water Board to approve life of project terms for type A licences to reduce redundant periodic review

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ANNEX A



• Provide for the recovery of costs from proponents on major developments undergoing a public review by the NWT Water Board


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ANNEX A


Modify the fines associated with the water regulatory processes



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ANNEX A



• Establish administrative monetary penalty systems that include enabling authority for the Minister, with the approval of the GiC, to make regulations for implementing an administrative monetary penalties system


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ANNEX A


Changes already announced in 2010 under the Action Plan

• Reflect the Northwest Territories Water Board's jurisdiction • Bring the Act in line with the Mackenzie Valley Resource Management Act in

relation to the structure of the Board and appointment of its members• Define the Board's jurisdiction as the Inuvialuit Settlement Region (except the

Yukon portion) • Identify the location of the main office as being in Inuvik• Address ambiguities, duplication and inconsistencies in this Act and within the

regulatory regime

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ANNEX A

Proposed Changes – Regulatory Changes

Regulatory changes announced in 2010 under Action Plan for NWT

• Territorial Land Use Regulations • amendments will better align some of the provisions with other land

management regulations in the North• Territorial Quarrying Regulations

• mainly administrative in nature, also includes things like changing the length of the term of a quarry permit from one year to three years

• Mackenzie Valley Land Use Regulations • amendments are required to address issues raised by the Standing Joint

Committee for the Scrutiny of Regulations and cover a broad range of provisions but are essentially technical in nature

• Northwest Territories Waters Regulations• changes will remove a duplicative approval process for the disposal of drill

wastes by downhole injection• Expected for Gazette II on December 19th, 2012

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ANNEX A






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ANNEX A




Yukon

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ANNEX A

Proposed Changes - Yukon Environmental and Socio-Economic Assessment Act (and regulations)

Establish through regulations fixed “beginning to end” timelines for public reviews by a designated office, executive committee or the Yukon Environmental and Socio-Economic Assessment Board, or joint panel

• 12 months for a review by a Designated Office which do not require a public meeting

• 21 months for a review by the Executive Committee of the Yukon Environmental and Socio-economic Assessment Board which requires a public meeting

• 24 months for a review by a Panel of the Yukon Environmental and Socio-economic Assessment Board or a joint panel review with a federal environmental assessment panel


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ANNEX A


Extension of YESAB member terms

• Provide for the extension of YESAB member terms to ensure quorum is maintained on public reviews

• On completion of the review, the board member’s temporary extension would end

Clarify role of CEAA and NEB in the Yukon

• Clarify the circumstances under which a joint Canadian Environmental Assessment Act - Yukon Environmental and Socio-economic Assessment Act review may be required

• Clarify that the National Energy Board role in the Yukon is regulatory and that projects regulated by the National Energy Board will be subject to environmental assessment under the YESAA

• Ensure that any project which would be subject to an environmental assessment under Canadian Environmental Assessment Act, 2012 is subject to assessment under the YESAA

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ANNEX A


Review lists of projects and thresholds that trigger environmental assessment in Yukon, against federal and provincial assessment triggers

• Review project inclusion and exclusion regulations to assess thresholds that trigger environmental assessment processes

• Assess comparability with other Canadian provincial jurisdictions, to ensure appropriate thresholds, as there is only one environmental impact assessment regime in the Yukon

• Review definition of ‘proponent’ to ensure that government regulatory activities can be included in a single assessment to avoid multiple reviews for elements related to a single project

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ANNEX A


Add legislative authority for regional studies in the Yukon

• Make additional information available and potentially accelerate environmental assessments, by providing for the conduct of regional studies at the discretion of and under the direction of the Minister of AAND

• Environmental impact assessments established under legislation would still take place, but regional studies would inform these processes, making them more timely and effective

• Regional studies would be made public and, review and land use planning boards would have the discretion to consider regional studies, when conducted

• Allow for cooperative regional studies across boundaries to apply

Plans subject to assessment in the Yukon.• Under s. 122(f) of the Yukon Environmental and Socio-economic Assessment Act,

define in regulations the types of plans subject to assessment• This will allow the Government of Canada to enact a regulation specifying the

types of plans subject to assessment

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ANNEX A






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ANNEX A




improvements to northern regulatory regimes...development of a model that will be shared with...

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