Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
Bill C‑88, An Act to amend the Mackenzie Valley Resource Management Act and the Canada Petroleum Resources Act and to make consequential amendments to other Acts,1 was introduced in the House of Commons on 8 November 2018 by the Honourable Dominic LeBlanc, Minister of Intergovernmental and Northern Affairs and Internal Trade.
Bill C‑88 introduces enforceable development certificates and cost recovery and administrative monetary penalty schemes, and authorizes the making of regulations respecting both cost recovery and administrative monetary penalty regimes. The bill also provides the Minister of Indian Affairs and Northern Development (the federal minister)2 with the discretion to appoint committees or individuals to study the effects of existing and future developments on a regional basis. Finally, the bill repeals provisions that never came into force related to the restructuring of land and water boards in the Mackenzie Valley.
The 1998 Mackenzie Valley Resource Management Act (MVRMA)3 established an integrated co‑management system for land and waters throughout the Mackenzie Valley region of the Northwest Territories. The MVRMA established two Valley‑wide boards – namely, the Mackenzie Valley Land and Water Board and the Mackenzie Valley Environmental Impact Review Board (Review Board). It also established three regional land and water boards for the Gwich’in, Sahtu and Tlicho settlement areas pursuant to the Gwich’in, Sahtu Dene and Métis (Sahtu), and Tlicho land claims agreements, granting these boards responsibility for issuing land‑use permits and water‑use licences.
In 2014, Bill C‑15, An Act to replace the Northwest Territories Act to implement certain provisions of the Northwest Territories Lands and Resources Devolution Agreement and to repeal or make amendments to the Territorial Lands Act, the Northwest Territories Waters Act, the Mackenzie Valley Resource Management Act, other Acts and certain orders and regulations (short title: Northwest Territories Devolution Act),4 sought to restructure this land and water board system, among other things. An injunction suspended the coming into force of these changes,5 which are appended to the MVRMA as “amendments not in force.”
Bill C‑88 amends the MVRMA to repeal the not‑in‑force provisions that restructured the land and water board system in the Mackenzie Valley, and brings into force the 2014 amendments regarding issuing enforceable development certificates, introducing cost recovery and administrative monetary penalty schemes, and establishing a committee to conduct regional studies to examine the effects of existing or future development on a regional basis.
The MVRMA was amended in 2014 by Bill C‑15, the Northwest Territories Devolution Act, which transferred decision‑making and administrative control over lands and resources from the Government of Canada to the Government of the Northwest Territories by giving effect to the Northwest Territories Lands and Resources Devolution Agreement.6 At the same time, the bill contained provisions that sought to restructure the MVRMA’s existing system of one Valley‑wide land and water board and three regional land and water boards, each with jurisdiction in different parts of the Mackenzie Valley, into a single management board (sometimes referred to as a “superboard”), to be called the “Mackenzie Valley Land and Water Board,” and to align the northern regulatory regime with those in the rest of Canada.
The three regional land and water boards for the Gwich’in, Sahtu and Tlicho settlement areas were each guaranteed a certain level of participation in decisions in the new management board established in Bill C‑15. While the new single board would retain Gwich’in, Sahtu and Tlicho representatives on regional “panels,” this would be at reduced numbers compared to the previous regional boards. The Gwich’in Tribal Council, Sahtu Secretariat Incorporated and Tlicho Government, among others, expressed serious concerns with the proposed changes to the MVRMA. They stated that the board restructuring measures were contrary to their land claims agreements and would affect the nature and extent of their participation in decisions affecting their jurisdictions.7
Bill C‑15 received Royal Assent on 25 March 2014, with provisions affecting the restructuring of the land and water boards to come into force on a date to be set by Order in Council.
On 8 May 2014, the Tlicho Government announced it had initiated a legal action against the Government of Canada, seeking, among other things, a declaration that certain provisions of the Northwest Territories Devolution Act are of no force or effect and an interim injunction to prevent the federal government from implementing the amendments to the MVRMA. The Sahtu Secretariat Incorporated also filed a separate lawsuit. On 27 February 2015, the Supreme Court of the Northwest Territories granted the Tlicho Government’s request for an injunction and issued an order suspending the coming into force of the related provisions of the Northwest Territories Devolution Act until final disposition of the case by the Court or by further order.8
In September 2016, the federal government began consultations with Indigenous governments and organizations, the Government of the Northwest Territories and relevant parties to address concerns raised about the changes made to the MVRMA through the Northwest Territories Devolution Act.
Bill C‑88 is the response to those concerns. It repeals those parts of the Northwest Territories Devolution Act that were subject to the injunction and to retain the current structure of four land and water boards serving different jurisdictions. It also re‑introduces some elements of the Northwest Territories Devolution Act that never came into force following the injunction issued by the Supreme Court of the Northwest Territories. According to departmental information, these reanimated provisions have been drafted to function under the four‑board structure.9
Bill C‑88 also amends the Canada Petroleum Resources Act10 (CPRA) to authorize the Governor in Council to issue an order prohibiting certain works or activities on federal Crown lands in the North and in the Arctic offshore when in the national interest.
The amendments to the CPRA arise from the December 2016 United States–Canada Joint Arctic Leaders’ Statement,11 in which the federal government announced that all Canadian Arctic waters were off limits to new offshore oil and gas licences indefinitely, to be reviewed every five years with a science‑based assessment.12 According to the federal government, these amendments are the result of consultations with existing oil and gas rights holders, territorial and Northern Indigenous governments.13
Bill C‑88 contains two parts and 86 clauses. The following description highlights the main provisions of the bill.
Bill C‑88 includes amendments that establish an enforceable development certificate scheme, together with related administration and enforcement provisions. A development certificate issued to a development proponent (referred to in the bill as a “person or body that proposes to carry out a development”) sets out the decision on an environmental assessment or an environmental impact review of a proposed development and includes any associated conditions with which a proponent of a development must comply to mitigate potential environmental impacts of the development.
Clause 1 amends the compliance provisions of the MVRMA to clarify that possession of a development certificate or amended development certificate does not exempt a person from compliance with any other legislation, order or regulation, except as provided for by law (section 7.2 of the MVRMA).
Clause 15 adds new section 117.1 to the MVRMA. It provides that a development may only proceed if
A development that has passed a preliminary screening may proceed, subject to a potential referral for environmental assessment by a body empowered to do so.
Clause 18 repeals section 129 of the MVRMA, which required a 10‑day delay before regulatory bodies could issue a permit or licence after a Review Board determined that, following an environmental assessment, an environmental impact review was not required. This is replaced with a new provision that includes a 10‑day delay on the issuance of a development certificate by the Review Board. The development proponent may not obtain permits, licences or authorizations until the development certificate has been issued. Even if a development does not require a licence, permit or authorization, work cannot proceed until the development certificate has been issued (new sections 131.3(1)(a) and 131.3(1)(b), and 131.3(3)(a) and 131.3(3)(b)).
Several clauses make amendments to the MVRMA to implement the development certificate scheme. For example, clauses 21 and 25 require the Tlicho Government to provide the Review Board with its decision respecting a recommendation by the Review Board or a review panel on a development to be carried out wholly or partially on Tlicho lands (amending sections 131.1 and 137.1, respectively).
Clauses 22 and 26 implement the development certificate scheme for environmental assessments and environmental impact reviews (new sections 131.3 and 137.4, respectively), and set out the circumstances under which the Review Board must issue a development certificate to the development proponent, the contents of the certificate and any conditions or mitigating requirements to be met. The Review Board must issue a certificate within 20 days after the expiry of the 10‑day delay referred to above (or within 30 days of receiving all applicable decisions in the case of an environmental impact review), or within 30 days of the Review Board receiving all applicable decisions, depending on the nature of its recommendation. The Minister may extend the time limit by 45 days.
Development certificates must contain the information set out in new sections 131.3(2) and 137.4(2). The development certificate must indicate that the environmental assessment or environmental impact review has been carried out and outline any conditions to be met by the proponent. Work may not proceed on the development until the development certificate has been issued and any conditions complied with. Further, copies of development certificates must be provided to all affected First Nations, departments and agencies of the federal and territorial government, and local governments.
Clause 31 adds provisions related to amending development certificates and their expiration. The Review Board may, with the approval of the federal minister, examine and amend a development certificate on its own initiative or at the request of the proponent, or any interested person, under specified circumstances. The Review Board must report on its examination and recommendations to the federal minister within five months unless an extension is granted. The federal minister and responsible ministers, if any (i.e., federal or territorial ministers with jurisdiction related to the development under federal or territorial law), must make a decision with respect to each recommendation in the report: accept the recommendation, send the recommendation back to the Review Board for further consideration or adopt it with modifications. The Review Board must issue an amended development certificate within 30 days of receiving the decision of the federal minister (new section 142.21). Clause 13 adds the decision respecting the amendment of a development certificate to the federal minister’s powers, duties and functions (amended section 111.1).
A development certificate or amended development certificate becomes invalid if the development for which the certificate or amended certificate has been issued has not commenced within five years of the certificate being issued. If a development certificate or amended development certificate has ceased to be valid, the proponent may request that the Review Board conduct a new environmental assessment. In that case, the proposal is deemed to be referred to the Review Board. The Review Board must consider, and may rely on, any previous assessment activities in relation to the development (new section 142.23).
Clause 31 also contains measures for ensuring compliance with the environmental assessment provisions of the MVRMA. For example, the federal minister may designate inspectors, who have broad authority to enter premises to examine, order, direct or prohibit, or limit access to the premises. However, inspectors cannot enter a dwelling‑house without the occupant’s consent or a warrant issued by a justice of the peace. A warrant to enter a dwelling‑house may authorize the use of force. If it is reasonable to do so, an inspector must give prior notice of entry onto Gwich’in, Sahtu or Tlicho lands. Inspectors may issue orders to cease a contravention of Part 5 of the MVRMA or mitigate the effects of a contravention and shall coordinate their activities with other inspectors and others to ensure efficiency and avoid duplication (new sections 142.24 to 142.31).
Prohibitions, offences and punishment provisions for the environmental assessment provisions of the MVRMA are set out in clause 34. It is prohibited to obstruct inspectors, to knowingly give a false statement or information, to carry out a development without authorization, or to fail to cease an activity upon an order to do so. These offences are punishable, on a first offence, to a fine of not more than $250,000 or to imprisonment for up to one year, or to both. Second or subsequent offences are punishable by a fine up to $500,000 or imprisonment for up to one year, or to both. Other provisions include a defence of due diligence, as well as a five‑year limitation period for bringing proceedings under this Part of the MVRMA (new sections 144.01 to 144.04).
Clause 2 addresses the right of Aboriginal14 peoples to representation on land and water boards as a result of a land claims agreement concerning any decision of the board that may affect an area of use that is outside the board’s jurisdiction. This clause amends section 15 of the MVRMA to clarify that, due to land claims agreements, the proportion of board nominees from Aboriginal peoples or Aboriginal governments is not affected when special representatives are added to the board.
Clauses 3, 10 and 11 allow members of land and water boards to continue to act after their term has expired in order to make a decision in relation to a permit or licence application. A request to the federal minister must be made two months prior to the expiration, and if the federal minister does not respond within two months of it being made, the request is deemed accepted (new sections 57.3 and 105). Clause 14 similarly allows a member of a Review Board to continue to act in relation to an environmental assessment or environmental impact review under consideration after the expiry of the term (new section 113.1).
Clause 17 adds a 10‑day delay in the issuance of a licence, permit or authorization for a development outside any municipal boundary, or, where a licence, permit or authorization is not required, provides that the work shall not be carried out for 10 days, from the time that a body conducting a preliminary screening determines that the development would not have significant impact on the environment or cause public concern. The purpose of this delay is to provide various bodies under the MVRMA with a reasonable amount of time to determine whether they wish to exercise their power to refer a development to environmental assessment.
The same 10‑day delay applies where the proposed development is within a municipal boundary and the body conducting a preliminary screening determines that the development would not be likely to have adverse impact on air, water or renewable resources and that the development would not be a cause of public concern. Where no licence, permit or authorization is required, work may commence after 10 days (new sections 125(1.1) to 125(1.3) and 125(3) to 125(6)).
Clause 33 provides that the time limitation relating to incorporating a document by reference (as set out in section 18.1(2)(a) of the Statutory Instruments Act15) does not apply to the regulation‑making authority under Part 5 of the MVRMA. It provides that when a document is incorporated by reference as part of regulations, the incorporated document may change over time (new section 143.1).
Clause 35 of the bill adds new Part 5.1 to the MVRMA to address compliance matters. Under the heading “Administrative Monetary Penalties,” new section 144.11 allows the federal minister, with the approval of the Governor in Council and following consultation with the Gwich’in and Sahtu First Nations and the Tlicho Government, to make regulations indicating that violations of specified provisions of the MVRMA may be treated as contraventions that will be subject to administrative monetary penalties.
The federal minister is given, among other things, the power to make regulations establishing a range of penalties for each violation, which may be different for individuals or other persons. The maximum penalty for a violation under these provisions is $25,000 for an individual, and $100,000 for any other person, such as a corporation.
New section 144.13(2) states that the purpose of these penalties is to promote compliance with the MVRMA and not to punish. This point is further emphasized in section 144.19(2), which advises that a violation is not an offence and, accordingly, that section 126 of the Criminal Code does not apply. (The Criminal Code provides that it is an indictable offence, punishable by up to two years’ imprisonment, to disobey an Act of Parliament.)
New section 144.16 sets out the requirements for a notice of violation to be served on a person. These include the name of the person believed to have committed the violation, the relevant facts of the violation and the amount of penalty the person is liable to pay. The person must be advised of the right to request that the applicable review body review the violation, the penalty or both. If a request is made, the burden of proof for establishing whether the violation occurred is the balance of probabilities (new section 144.25(3)).
Clause 35 further sets out various other provisions addressing the liability of directors and officers, continuing violations (violations committed or continued on more than one day), and witnesses (new sections 144.14, 144.18 and 144.24, respectively). This clause also provides for the exclusion of the defences of due diligence and reasonable and honest belief in the existence of facts that would exonerate the alleged violator (new section 144.17). Taken together, these provisions amount to absolute liability for a violation.
Clause 35 also adds new Part 5.2 to the MVRMA, giving the federal minister the discretion to appoint a committee to study the effects of existing and future developments in the Mackenzie Valley. Before establishing the committee’s terms of reference, the federal minister must seek and consider the advice of the territorial government. If the study is to examine any works or activities affecting a first nation or the Tlicho First Nation, then the federal minister must seek and consider the advice of that first nation or the Tlicho Government, as the case may be, before establishing the committee’s terms of reference (new section 144.32).
The federal minister may also establish a joint committee with authorities responsible for examining environmental effects in a region of the Mackenzie Valley and in a region contiguous to it (new section 144.37). When a study is completed, the committee or joint committee shall provide a report to the federal minister, who will then make it publicly available. This report will then be considered by the land and water boards and preliminary screeners when exercising their duties under the MVRMA (new sections 144.38 and 144.39).
The bill contains several provisions related to cost recovery. For example, clause 5 adds new section 79.4 to the MVRMA, setting out a regime to allow the federal minister to recover costs incurred by a land and water board related to the consideration of an application for a licence, or for amending, cancelling or renewing a licence. Clause 8 authorizes the making of regulations for cost recovery (new section 90.31); clause 9 clarifies that the definition of “licence” in Part 3 of the MVRMA applies in Part 4 to the new cost‑recovery provisions outlined in clause 5 (amended section 96(4)).
The costs eligible for recovery, to be prescribed by regulations, include salaries and expenses of the board and staff members related to the fulfilment of their functions and duties, and services of third parties. Costs to be recovered by the federal minister constitute a debt to the Crown and may be recovered in court.
Clause 30 adds a similar provision for the federal minister to recover from a development proponent costs incurred by a Review Board, a review panel or joint panel related to an environmental assessment or environmental impact review of the development (new section 142.01). Clause 32 allows regulations to be made with respect to costs and consultations for cost recovery (new sections 143(1)(h), 143(1)(i), 143(2) and 143(2.1)).
Clause 8 authorizes the Governor in Council, following consultations with First Nations, the Tlicho Government, the territorial minister and the land and water boards, to make regulations establishing requirements for consultations that may take place with a First Nation, the Tlicho First Nation, the Tlicho Government or an Aboriginal people who use an area outside the Mackenzie Valley regarding land and water use (new section 90.32).
Clause 36 specifies that development proposals already before a body conducting an environmental assessment or environmental impact review, or before a person or body making a decision on an environmental assessment or environmental impact review, continue to be subject to Part 5 of the MVRMA as it existed prior to the coming into force of the amendments introduced in this bill.
Clauses 37 to 80 repeal sections of the Northwest Territories Devolution Act not in force, including the provisions that would have restructured the regional land and water board system in the Mackenzie Valley. Some of the sections being repealed in these clauses have been reintroduced in this bill, notably those regarding development certificates, the extension of board members’ terms, cost recovery and administrative monetary penalty schemes, regulations concerning consultations and regional studies.
Clause 81 repeals section 95 of the Tlicho Land Claims and Self‑Government Act,16 which included transitional provisions that are spent and no longer of any force or effect.
Clause 82 repeals section 42 of the Déline Final Self‑Government Agreement Act,17 a coordinating amendment related to provisions in the Northwest Territories Devolution Act that are not in force and are repealed under Bill C‑88.
The MVRMA and Bill C‑88 make several references to the Canadian Environmental Assessment Act, 2012.18 This Act would be repealed and replaced by the proposed Impact Assessment Act in Bill C‑69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments.19 Bill C‑69 was before Parliament when Bill C‑88 was tabled. As the timing of Royal Assent for both Bill C‑88 and C‑69 is uncertain, clause 83 sets out coordinating amendments to ensure the application and wording of various provisions are accurately reflected in the final legislation, depending on which of Bill C‑88 or Bill C‑69 receives Royal Assent first.
To allow time for policy and administrative preparations to be completed, provisions related to development certificates (clauses 1, 13, 15, 16, 18 to 29, 31 and 34) come into force on a day to be fixed by order of the Governor in Council. All other provisions of Bill C‑88 come into force on Royal Assent.
Clause 85 amends the CPRA to authorize the Governor in Council to issue an order prohibiting an interest owner or any other person from starting or continuing any work or activity authorized under the Canada Oil and Gas Operations Act20 on frontier lands in the North and in the Arctic offshore when in the national interest or in other specified circumstances (amended section 12(1)). This amendment gives effect to certain provisions of the 2016 United States–Canada Joint Arctic Leaders’ Statement, in which both countries committed to suspend the issuing of new oil and gas rights in Arctic waters indefinitely, to be reviewed every five years with a science‑based assessment.
Coordinating amendments are set out in clause 86. These amendments are necessary because Bill C‑88 refers to Bill C‑55, An Act to amend the Oceans Act and the Canada Petroleum Resources Act,21 which was before Parliament when Bill C‑88 was tabled. Both Bill C‑88 and Bill C‑55 amend section 12(1) of the CPRA. As the timing for Royal Assent for Bill C‑88 and C‑55 is uncertain, clause 86 sets out coordinating amendments to ensure the application and wording of various provisions are accurately reflected in the final legislation, depending on which of Bill C‑88 or Bill C‑55 first receives Royal Assent.
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]
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