Bill C-14

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1st Session, 38th Parliament,

53 Elizabeth II, 2004

house of commons of canada

BILL C-14

An Act to give effect to a land claims and self-government agreement among the Tlicho, the Government of the Northwest Territories and the Government of Canada, to make related amendments to the Mackenzie Valley Resource Management Act and to make consequential amendments to other Acts

Preamble

WHEREAS the Tlicho is an aboriginal people of Canada that has used and occupied lands in and adjacent to the Northwest Territories from time immemorial;

WHEREAS the Tlicho, as represented by the Dogrib Treaty 11 Council, the Government of the Northwest Territories and the Government of Canada negotiated a land claims and self-government agreement in order to define and provide certainty in respect of rights of the Tlicho relating to lands, resources and self-government;

WHEREAS the Tlicho, by a vote held on June 26 and 27, 2003, approved the agreement;

WHEREAS the Tlicho, as represented by the Dogrib Treaty 11 Council, the Government of the Northwest Territories and the Government of Canada signed the agreement on August 25, 2003;

WHEREAS on October 10, 2003 the Commissioner in Council of the Northwest Territories made an ordinance entitled the Tlicho Land Claims and Self-Government Agreement Act approving the agreement;

AND WHEREAS the agreement provides that the agreement will be a land claims agreement within the meaning of section 35 of the Constitution Act, 1982 and that approval by Parliament is a condition precedent to the validity of the agreement;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Short title

1. This Act may be cited as the Tlicho Land Claims and Self-Government Act.

INTERPRETATION

Definitions

2. The following definitions apply in this Act.

“Agreement”
« Accord »

“Agreement” means the Land Claims and Self-Government Agreement among the Tlicho, the Government of the Northwest Territories and the Government of Canada, signed on August 25, 2003, including any amendments made to it from time to time.

“Tax Treatment Agreement”
« accord sur le traitement fiscal »

“Tax Treatment Agreement” means the Tlicho Tax Treatment Agreement among the Government of Canada, the Government of the Northwest Territories and the Tlicho First Nation, signed on behalf of the Government of Canada on February 6, 2003, on behalf of the Government of the Northwest Territories on February 27, 2003 and on behalf of the Tlicho First Nation on March 3, 2003, including any amendments made to it from time to time.

“Tlicho Government”
« gouvernement tlicho »

“Tlicho Government” means the government of the Tlicho First Nation established in accordance with chapter 7 of the Agreement.

“Tlicho law”
« loi tlicho »

“Tlicho law” means a law enacted by the Tlicho Government.

AGREEMENT

Agreement given effect

3. (1) The Agreement is approved, given effect and declared valid and has the force of law.

Rights and obligations

(2) For greater certainty, any person or body may exercise the powers, rights, privileges and benefits conferred on the person or body by the Agreement and shall perform the duties, and is subject to the liabilities, imposed on the person or body by the Agreement.

Agreement binding

(3) For greater certainty, the Agreement is binding on, and may be relied on by, all persons and bodies.

Publication of Agreement and amendments

4. The Minister of Indian Affairs and Northern Development shall cause a copy of the Agreement and of any amendments made to it to be deposited in

(a) the Library of Parliament;

(b) the library of the Legislative Assembly of the Northwest Territories;

(d) the library of the Department of Indian Affairs and Northern Development that is situated in the National Capital Region;

(e) the office of the Registrar of Land Titles for the Northwest Territories;

(f) the regional office of the Department of Indian Affairs and Northern Development that is situated in the Northwest Territories; and

(g) any other places that that Minister considers necessary.

OTHER LAWS

Conflict between the Agreement or this Act and other legislation

5. (1) In the event of an inconsistency or conflict between the Agreement or this Act, or any regulations made under this Act, and the provisions of any other Act of Parliament, any ordinance of the Northwest Territories, any regulations made under any of those other Acts or ordinances, or any Tlicho law, then the Agreement or this Act, or regulations made under this Act, as the case may be, prevail to the extent of the inconsistency or conflict.

Conflict between the Agreement and this Act

(2) In the event of an inconsistency or conflict between the Agreement and the provisions of this Act or any regulations made under this Act, the Agreement prevails to the extent of the inconsistency or conflict.

APPROPRIATION

Payments out of C.R.F.

6. There shall be paid out of the Consolidated Revenue Fund any sums that are required to meet the monetary obligations of Canada under chapters 9, 18 and 24 to 26 of the Agreement.

TAXATION

Tax Treatment Agreement given effect

7. (1) The Tax Treatment Agreement is approved, given effect and declared valid and has the force of law during the period that it is in effect.

Not a treaty

(2) The Tax Treatment Agreement does not form part of the Agreement and is not a treaty or a land claims agreement within the meaning of section 35 of the Constitution Act, 1982.

WEKEEZHII RENEWABLE RESOURCES BOARD

Legal capacity

8. For the purposes of carrying out its objectives, the Wekeezhii Renewable Resources Board established by chapter 12 of the Agreement has the capacity, rights, powers and privileges of a natural person.

GENERAL

Judicial notice of Agreements

9. (1) Judicial notice shall be taken of the Agreement and the Tax Treatment Agreement.

Publication of Agreements

(2) The Agreement and the Tax Treatment Agreement shall be published by the Queen’s Printer.

Evidence

(3) A copy of the Agreement or the Tax Treatment Agreement published by the Queen’s Printer is evidence of that Agreement, and a copy purporting to be published by the Queen’s Printer is deemed to be so published, unless the contrary is shown.

Judicial notice of Tlicho laws

10. (1) Judicial notice shall be taken of Tlicho laws.

Evidence of Tlicho laws

(2) A copy of a Tlicho law purporting to be deposited in the public registry of Tlicho laws referred to in chapter 7 of the Agreement is evidence of that law and of its contents, unless the contrary is shown.

Statutory Instruments Act

11. For greater certainty, Tlicho laws are not statutory instruments within the meaning of the Statutory Instruments Act.

Orders and regulations

12. The Governor in Council may make any orders and regulations that are necessary for the purpose of carrying out the Agreement or the Tax Treatment Agreement.

Eligibility Committee

13. Despite having been established before the effective date of the Agreement, the Eligibility Committee referred to in chapter 3 of the Agreement is deemed to have been validly established under the Agreement and to have had, since it was established, the jurisdiction, powers and authority provided by the Agreement.

Notice of issues arising

14. (1) If, in any judicial or administrative proceeding, an issue arises in respect of

(a) the interpretation, validity or applicability of the Agreement, or

(b) the validity or applicability of this Act, the ordinance of the Northwest Territories entitled the Tlicho Land Claims and Self-Government Agreement Act or any Tlicho law,

the issue shall not be decided until the party raising the issue has served notice on the Attorney General of Canada, the Attorney General of the Northwest Territories and the Tlicho Government.

Content of notice

(2) The notice must

(a) describe the judicial or administrative proceeding in which the issue arises;

(b) state whether the issue arises in respect of the matters referred to in paragraph (1)(a) or (b) or both;

(d) give particulars necessary to show the point to be argued; and

(e) be served at least 14 days before the day of argument, unless the court or tribunal authorizes a shorter period.

Participation in proceedings

(3) In any judicial or administrative proceeding to which subsection (1) applies, the Attorney General of Canada, the Attorney General of the Northwest Territories and the Tlicho Government may appear and participate in the proceeding as parties with the same rights as any other party.

Saving

(4) For greater certainty, subsections (2) and (3) do not require that an oral hearing be held if one is not otherwise required.

1998, c. 25

AMENDMENTS TO THE MACKENZIE VALLEY RESOURCE MANAGEMENT ACT

15. (1) The definitions “first nation”, “land claim agreement”, “local government”, “settlement area” and “settlement lands” in section 2 of the Mackenzie Valley Resource Management Act are replaced by the following:

“first nation”
« première nation »

“first nation” means the Gwich’in First Nation, the Sahtu First Nation or bodies representing other Dene or Metis of the North Slave, South Slave or Deh Cho region of the Mackenzie Valley, but does not include the Tlicho First Nation or the Tlicho Government.

“land claim agreement”
« accord de revendication »

“land claim agreement” means the Gwich’in Agreement, the Sahtu Agreement or the Tlicho Agreement.

“local government”
« administration locale »

“local government” means any local government established under the laws of the Northwest Territories, including a city, town, village, hamlet, charter community, settlement or government of a Tlicho community, whether incorporated or not, and includes the territorial government acting in the place of a local government pursuant to those laws.

“settlement area”
« région désignée »

“settlement area” means the area described in appendix A to the Gwich’in Agreement or in appendix A to the Sahtu Agreement.

“settlement lands”
« terres désignées »

“settlement lands” means lands referred to as settlement lands in the Gwich’in Agreement or the Sahtu Agreement.

(2) Section 2 of the Act is amended by adding the following in alphabetical order:

“Monfwi Gogha De Niitlee”
« Monfwi gogha de niitlee »

“Monfwi Gogha De Niitlee” means the area described in part 1 of the appendix to chapter 1 of the Tlicho Agreement.

“territorial law”
« règle de droit territoriale »

“territorial law” means an ordinance of the Northwest Territories and any regulations made under such an ordinance.

“Tlicho Agreement”
« accord tlicho »

“Tlicho Agreement” means the Land Claims and Self-Government Agreement among the Tlicho, the Government of the Northwest Territories and the Government of Canada, signed on August 25, 2003 and approved, given effect and declared valid by the Tlicho Land Claims and Self-Government Act, as that Agreement is amended from time to time in accordance with its provisions.

“Tlicho citizen”
« citoyen tlicho »

“Tlicho citizen” means a person whose name is on the Register as defined in chapter 1 of the Tlicho Agreement.

“Tlicho community”
« collectivité tlicho »

“Tlicho community” means a community for which a community government is established in accordance with chapter 8 of the Tlicho Agreement.

“Tlicho First Nation”
« première nation tlicho »

“Tlicho First Nation” means the aboriginal people of Canada to whom section 35 of the Constitution Act, 1982 applies, consisting of all Tlicho citizens.

“Tlicho Government”
« gouvernement tlicho »

“Tlicho Government” means the government of the Tlicho First Nation established in accordance with chapter 7 of the Tlicho Agreement.

“Tlicho lands”
« terres tlichos »

“Tlicho lands” means Tlicho lands as defined in chapter 1 of the Tlicho Agreement.

“Tlicho law”
« loi tlicho »

“Tlicho law” means a law enacted by the Tlicho Government.

“Wekeezhii”
« Wekeezhii »

“Wekeezhii” means the area described in part 2 of the appendix to chapter 1 of the Tlicho Agreement.

16. Section 4 of the Act is amended by adding the following after subsection (3):

Delegation by Tlicho Government

(4) The Tlicho Government may, in conformity with the Tlicho Agreement, delegate any of its functions under this Act to

(a) a body or office established by a Tlicho law;

(b) any department, agency or office of the federal or the territorial government;

(d) a local government.

17. The Act is amended by adding the following after section 5:

Agreement between Tlicho Government and another aboriginal people

5.1 The rights of the Tlicho First Nation, Tlicho citizens and the Tlicho Government under this Act are subject to the provisions of any agreement entered into between the Tlicho Government and an aboriginal people, other than the Tlicho First Nation, under 2.7.3 of chapter 2 of the Tlicho Agreement.

18. Subsection 8(1) of the Act is replaced by the following:

Consultation

8. (1) The federal Minister shall consult the first nations and the Tlicho Government with respect to the amendment of this Act.

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

Appointment of members by federal Minister

11. (1) The members of a board — other than the chairperson, any members appointed pursuant to a determination under section 15 and any members appointed by the Tlicho Government under subsection 57.1(2) or in accordance with an agreement referred to in that subsection — shall be appointed by the federal Minister in accordance with Parts 2 to 5.

(2) The portion of subsection 11(2) of the Act before paragraph (a) is replaced by the following:

Alternate members

(2) Except in the case of the Wekeezhii Land and Water Board, the federal Minister may appoint

20. Subsections 12(1) and (2) of the Act are replaced by the following:

Chairperson

12. (1) Except in the case of the Wekeezhii Land and Water Board, the chairperson of a board shall be appointed by the federal Minister from persons nominated by a majority of the members.

Appointment by federal Minister

(2) Except in the case of the Wekeezhii Land and Water Board, if a majority of the members does not nominate a person acceptable to the federal Minister within a reasonable time, the Minister may appoint any person as chairperson of the board.

Wekeezhii Land and Water Board

(2.1) The chairperson of the Wekeezhii Land and Water Board shall be appointed jointly by the federal Minister and the Tlicho Government on the nomination of the members of the Board other than the chairperson.

21. Subsection 14(3) of the Act is replaced by the following:

Removal by federal Minister after consultation

(3) A member who has been appointed by the federal Minister may not be removed from office except after consultation by the federal Minister with the board and, where applicable, with the territorial Minister, the first nation or the Tlicho Government that nominated the member.

Removal by Tlicho Government after consultation

(4) A member of the Wekeezhii Land and Water Board who has been appointed by the Tlicho Government may not be removed from office except after consultation by the Tlicho Government with the Board and the federal Minister.

22. Section 15 of the Act is replaced by the following:

Implementation of right of representation of other aboriginal peoples

15. Despite any provision of this Act respecting members of a board, if an aboriginal people has a right under a land claim agreement to representation on that board in relation to a decision of the board that might affect an area used by that aboriginal people that is outside the board’s area of jurisdiction, the board shall, in accordance with that land claim agreement, determine how to implement that right.

23. Subsection 16(2) of the Act is replaced by the following:

Status or entitlements under agreement

(2) A member of a board is not placed in a material conflict of interest merely because of any status or entitlement conferred on the member under the Gwich’in Agreement, the Sahtu Agreement, the Tlicho Agreement or any other agreement between a first nation and Her Majesty in right of Canada for the settlement of a claim to lands.

24. Subsection 17(1) of the Act is replaced by the following:

Remuneration

17. (1) Members of a board, other than any members appointed pursuant to a determination under section 15, shall be paid such fees or other remuneration as the federal Minister may fix.

25. Section 22 of the Act is replaced by the following:

Government information

22. Subject to any other federal or territorial law and to any Tlicho law, a board may obtain from any department or agency of the federal or territorial government or the Tlicho Government any information in the possession of the department or agency or the Tlicho Government that the board requires for the performance of its functions.

26. Section 24 of the Act is replaced by the following:

Hearings

24. In addition to hearings that a board is authorized or required to hold under this Act, a board may conduct any hearings that it considers to be desirable for the purpose of carrying out any of its functions.

Coordination

24.1 A board shall coordinate its activities, including hearings, with the activities of

(a) other boards;

(b) departments and agencies of the federal government that have responsibility for the administration, management and control of parks to which the Canada National Parks Act applies or lands acquired pursuant to the Historic Sites and Monuments Act;

(c) committees established under any of the land claim agreements for the management of parks to which the Canada National Parks Act applies;

(d) committees, or similar bodies, established for the management of protected areas as defined in any of the land claim agreements;

(e) renewable resources boards established under any of the land claim agreements; and

(f) land use planning bodies established for Wekeezhii or any part of Wekeezhii.

27. (1) Subsection 31(1) of the Act is replaced by the following:

Statutory Instruments Act

31. (1) Sections 3, 5 and 11 of the Statutory Instruments Act do not apply in respect of rules under section 30, a land use plan or amendment thereto under Part 2, rules under subsection 49(2), guidelines or policies under section 65, policy directions under subsection 83(1) or (2), directions under section 106, policy directions under section 109 or 109.1 or guidelines under section 120.

(2) Section 31 of the Act is amended by adding the following after subsection (2):

Statutory Instruments Act

(3) For greater certainty, permits issued by a board under Part 3 or 4 either before or after the coming into force of this subsection are not statutory instruments within the meaning of the Statutory Instruments Act.

2002, c. 8, par. 182(1)(x)

28. Section 32 of the Act and the heading before it are replaced by the following:

Jurisdiction of Courts

Concurrent jurisdiction

32. (1) Notwithstanding the exclusive jurisdiction referred to in section 18 of the Federal Courts Act, the Attorney General of Canada or anyone directly affected by the matter in respect of which relief is sought may make an application to the Supreme Court of the Northwest Territories for any relief against a board by way of an injunction or declaration or by way of an order in the nature of certiorari, mandamus, quo warranto or prohibition.

Exclusive original jurisdiction

(2) Despite subsection (1) and section 18 of the Federal Courts Act, the Supreme Court of the Northwest Territories has exclusive original jurisdiction to hear and determine any action or proceeding, whether or not by way of an application of a type referred to in subsection (1), concerning the jurisdiction of the Mackenzie Valley Land and Water Board or the Mackenzie Valley Environmental Impact Review Board.

29. (1) The definition “board” in section 51 of the Act is replaced by the following:

“board”
« office »

“board” means the Gwich’in Land and Water Board, the Sahtu Land and Water Board or the Wekeezhii Land and Water Board established by sections 54, 56 and 57.1, respectively.

(2) Section 51 of the Act is amended by adding the following in alphabetical order:

“management area”
« zone de gestion »

“management area” means an area in respect of which a board has been established, namely,

(a) in the case of the Gwich’in Land and Water Board, the area described in appendix A to the Gwich’in Agreement;

(b) in the case of the Sahtu Land and Water Board, the area described in appendix A to the Sahtu Agreement; and

2000, c. 32, s. 53

30. (1) Subsections 52(1) and (2) of the Act are replaced by the following:

National parks and historic sites

52. (1) This Part, except sections 78, 79, 79.2 and 79.3, does not apply in respect of the use of land or waters or the deposit of waste within a park to which the Canada National Parks Act applies or within lands acquired pursuant to the Historic Sites and Monuments Act.

Consultation with board

(2) Notwithstanding subsection (1), an authority responsible for authorizing uses of land or waters or deposits of waste in a portion of a management area excluded by that subsection from the application of this Part shall consult the board established for that management area before authorizing any such use or deposit.

(2) Subsection 52(3) of the English version of the Act is replaced by the following:

Consultation with authority

(3) A board shall consult a responsible authority referred to in subsection (2) before issuing a licence, permit or authorization for a use of land or waters or deposit of waste that may have an effect in the portion of the management area in which the authority is responsible.

31. The Act is amended by adding the following after section 57:

Wekeezhii Land and Water Board

Board established

57.1 (1) There is hereby established, in respect of Wekeezhii, a board to be known as the Wekeezhii Land and Water Board.

Membership

(2) The Board shall consist of five members including, apart from the chairperson, two members who, subject to any agreement between the Tlicho Government and an aboriginal people of Canada to whom section 35 of the Constitution Act, 1982 applies, other than the Tlicho First Nation, are appointed by the Tlicho Government and one member who is appointed on the nomination of the territorial Minister.

Consultation

(3) The federal Minister and the Tlicho Government shall consult each other before making their appointments.

Quorum

(4) A quorum of the Board consists of three members, or any larger number that is determined by the Board, including one of the members appointed by the Tlicho Government or in accordance with any agreement referred to in subsection (2) and one of the members appointed by the federal Minister, other than the chairperson.

Main office

57.2 The main office of the Board shall be located in Wekeezhii.

32. Section 58 of the Act is replaced by the following:

Objectives — Gwich’in and Sahtu Land and Water Boards

58. The Gwich’in Land and Water Board and the Sahtu Land and Water Board shall regulate the use of land and waters and the deposit of waste so as to provide for the conservation, development and utilization of land and water resources in a manner that will provide the optimum benefit for residents of their respective management areas and of the Mackenzie Valley and for all Canadians.

Objectives — Wekeezhii Land and Water Board

58.1 The Wekeezhii Land and Water Board shall regulate the use of land and waters and the deposit of waste so as to provide for the conservation, development and utilization of land and water resources in a manner that will provide the optimum benefit generally for all Canadians and in particular for residents of its management area.

33. Subsection 59(1) of the Act is replaced by the following:

Jurisdiction — land

59. (1) A board has jurisdiction in respect of all uses of land in its management area for which a permit is required under this Part and may, in accordance with the regulations, issue, amend, renew, suspend and cancel permits and authorizations for the use of land, and approve the assignment of permits.

34. (1) Subsection 60(1) of the Act is replaced by the following:

Jurisdiction — water and waste

60. (1) A board has jurisdiction in respect of all uses of waters and deposits of waste in its management area for which a licence is required under the Northwest Territories Waters Act and may

(a) issue, amend, renew and cancel licences and approve the assignment of licences, in accordance with that Act, and

(b) exercise any other power of the Northwest Territories Water Board under that Act,

and, for those purposes, references in that Act to that Board shall be read as references to the board.

1998, c. 15, par. 48(b)

(2) Subsection 60(3) of the Act is replaced by the following:

Effect outside management area

(3) In respect of a use of waters or deposit of waste in a management area that has an effect in a region of the Northwest Territories or Nunavut outside the management area, subsections 14(4) and (5) of the Northwest Territories Waters Act apply in relation to the protection of the rights of licensees and other persons referred to in those subsections who are in such a region.

(3) Subsections 60(4) and (5) of the Act are replaced by the following:

Northwest Territories Waters Act

(4) Notwithstanding subsection (1), the following provisions of the Northwest Territories Waters Act do not apply in respect of a management area, namely, sections 10 to 13, subsection 14(6), sections 20 and 22, paragraphs 23(1)(b) and (2)(b), section 24, section 26 except in relation to type A licences under that Act, sections 27 and 28 and subsection 37(2).

Northwest Territories Waters Act

(5) Notwithstanding subsection (1), section 31 of the Northwest Territories Waters Act does not apply in respect of first nation lands or Tlicho lands.

35. Section 61 of the Act is replaced by the following:

Considerations

60.1 In exercising its powers, a board shall consider

(a) the importance of conservation to the well-being and way of life of the aboriginal peoples of Canada to whom section 35 of the Constitution Act, 1982 applies and who use an area of the Mackenzie Valley; and

(b) any traditional knowledge and scientific information that is made available to it.

Conformity with land use plan — Gwich’in and Sahtu Boards

61. (1) The Gwich’in Land and Water Board and the Sahtu Land and Water Board may not issue, amend or renew a licence, permit or authorization except in accordance with an applicable land use plan under Part 2.

Conformity with land use plan — Wekeezhii Board

(2) The Wekeezhii Land and Water Board may not issue, amend or renew a licence, permit or authorization except in accordance with any land use plan, established under a federal, territorial or Tlicho law, that is applicable to any part of its management area.

Conformity with Tlicho laws — Wekeezhii Board

61.1 The Wekeezhii Land and Water Board may not exercise its discretionary powers relating to the use of Tlicho lands except in accordance with any Tlicho laws enacted under 7.4.2 of chapter 7 of the Tlicho Agreement.

36. Subsection 63(2) of the Act is replaced by the following:

Notice of applications

(2) A board shall notify affected communities and first nations of an application made to the board for a licence, permit or authorization and allow a reasonable period of time for them to make representations to the board with respect to the application.

Notice to Tlicho Government

(3) The Wekeezhii Land and Water Board shall notify the Tlicho Government of an application made to the Board for a licence, permit or authorization and allow a reasonable period of time for it to make representations to the Board with respect to the application.

Consultation with Tlicho Government

(4) The Wekeezhii Land and Water Board shall consult the Tlicho Government before issuing, amending or renewing any licence, permit or authorization for a use of Tlicho lands or waters on those lands or a deposit of waste on those lands or in those waters.

37. (1) Subsection 64(1) of the Act is replaced by the following:

Heritage resources

64. (1) A board shall seek and consider the advice of any affected first nation and, in the case of the Wekeezhii Land and Water Board, the Tlicho Government and any appropriate department or agency of the federal or territorial government respecting the presence of heritage resources that might be affected by a use of land or waters or a deposit of waste proposed in an application for a licence or permit.

(2) Subsection 64(2) of the English version of the Act is replaced by the following:

Wildlife resources

(2) A board shall seek and consider the advice of the renewable resources board established by the land claim agreement applicable in its management area respecting the presence of wildlife and wildlife habitat that might be affected by a use of land or waters or a deposit of waste proposed in an application for a licence or permit.

38. Section 68 of the Act is repealed.

39. Section 73 of the Act is renumbered as subsection 73(1) and is amended by adding the following:

Wildlife harvesting and traditional use — Tlicho citizens

(2) Despite sections 8 and 9 of the Northwest Territories Waters Act — and subject to any applicable Tlicho laws and, in relation to waters that are on settlement lands, any limitations under the applicable land claim agreement that are of the same type as those that apply in relation to waters on Tlicho lands — Tlicho citizens have the right to use water in the part of Monfwi Gogha De Niitlee that is in the Northwest Territories without a licence, for purposes of wildlife harvesting under 10.1.1 of chapter 10 of the Tlicho Agreement, for purposes of transportation related to such wildlife harvesting and for heritage, cultural or spiritual purposes of the Tlicho First Nation.

40. The portion of section 76 of the Act before paragraph (a) is replaced by the following:

Issuance, amendment or renewal of licences, etc.

76. The Gwich’in Land and Water Board or the Sahtu Land and Water Board may issue, amend or renew a licence, permit or authorization where the use of land or waters or the deposit of waste proposed by the applicant would, in the opinion of the board, interfere with a first nation’s rights under section 75, if the board is satisfied that

41. Section 77 of the Act and the heading before it are replaced by the following:

Compensation — Gwich’in and Sahtu First Nations

Conditions for licence

77. The Gwich’in Land and Water Board or the Sahtu Land and Water Board may not issue, amend or renew a licence pursuant to section 76 unless

(a) the applicant and the first nation enter into an agreement to compensate the first nation for any loss or damage resulting from any substantial alteration to the quality, quantity or rate of flow of waters when on or flowing through its first nation lands, or waters adjacent to its first nation lands; or

(b) the applicant or the first nation applies to the board for a determination pursuant to subsection 79(1).

1998, c. 15, par. 48(c); 2000, c. 32, s. 54

42. Subsection 78(1) of the Act is replaced by the following:

Application to water authority

78. (1) If the Gwich’in Land and Water Board or the Sahtu Land and Water Board determines that a use of waters or a deposit of waste that is proposed, in an application made to a water authority, to be carried out in

(a) an area of the Northwest Territories or Nunavut outside the board’s management area, or

(b) a park to which the Canada National Parks Act applies, or lands acquired pursuant to the Historic Sites and Monuments Act, in the board’s management area

would be likely to substantially alter the quality, quantity or rate of flow of waters when on or flowing through first nation lands of the Gwich’in or Sahtu First Nation or waters adjacent to those first nation lands, the board shall notify the water authority in writing of its determination.

43. (1) Subsection 79(1) of the Act is replaced by the following:

Referral of compensation to Board

79. (1) If a compensation agreement referred to in section 77 or 78 is not entered into within the period allowed by the rules of the Gwich’in Land and Water Board or the Sahtu Land and Water Board, as the case may be, the applicant or the first nation may apply to the board for a determination of compensation.

(2) Subparagraph 79(2)(a)(i) of the English version of the Act is replaced by the following:

(i) the first nation’s use of waters when on or flowing through its first nation lands or waters adjacent to its first nation lands, and

44. The Act is amended by adding the following after section 79:

Compensation — Tlicho First Nation

Conditions for licence

79.1 The Wekeezhii Land and Water Board may not issue, amend or renew a licence for the use of waters or the deposit of waste if, in its opinion, that use or deposit is likely to substantially alter the quality, quantity or rate of flow of waters when on or flowing through Tlicho lands or waters adjacent to Tlicho lands unless

(a) the Board is satisfied that there is no alternative that could reasonably satisfy the requirements of the applicant and that there are no reasonable measures by which the applicant could avoid the alteration; and

(b) the applicant has entered into an agreement with the Tlicho Government to compensate the Tlicho First Nation for any loss or damage that may be caused by the alteration, or the applicant or the Tlicho Government has applied to the Board under subsection 79.3(1) for a determination of compensation for that loss or damage.

Application to water authority

79.2 (1) If the Wekeezhii Land and Water Board determines that a use of waters or a deposit of waste that is proposed, in an application made to a water authority, to be carried out in

(a) Nunavut or an area of the Northwest Territories outside Wekeezhii, or

(b) a park to which the Canada National Parks Act applies, or lands acquired pursuant to the Historic Sites and Monuments Act, in Wekeezhii

would be likely to substantially alter the quality, quantity or rate of flow of waters when on or flowing through Tlicho lands or waters adjacent to Tlicho lands, the Board shall notify the water authority in writing of its determination.

Access to information

(2) A water authority shall provide the Board with any information in its possession that the Board requires in order to make a determination under subsection (1).

Conditions for authorization

(3) Despite any other Act, a water authority that is notified by the Board under subsection (1) may not authorize the proposed use of waters or deposit of waste unless

(a) the applicant and the Tlicho Government have entered into an agreement to compensate the Tlicho First Nation for any loss or damage that may be caused by the alteration; or

(b) the applicant or the Tlicho Government applies to the Board under subsection 79.3(1) for a determination.

Referral of compensation to Wekeezhii Board

79.3 (1) If a compensation agreement referred to in paragraph 79.1(b) or 79.2(3)(a), as the case may be, is not entered into, the applicant or the Tlicho Government may, after having participated in mediation under chapter 6 of the Tlicho Agreement, apply to the Wekeezhii Land and Water Board for a determination of compensation.

Determination of compensation

(2) On an application under subsection (1), the Board shall determine the compensation payable in respect of the proposed use of waters or deposit of waste, taking into consideration

(a) the effect of the proposed use or deposit on

(i) the use by Tlicho citizens of waters when on or flowing through Tlicho lands, or waters adjacent to Tlicho lands,

(ii) Tlicho lands, taking into account any cultural or special value of those lands to the Tlicho First Nation, and

(iii) wildlife harvesting carried on by Tlicho citizens;

(b) the nuisance or inconvenience, including noise, caused by the proposed use or deposit to Tlicho citizens on Tlicho lands; and

Form of compensation

(3) The compensation may be in the form of a lump sum payment or periodic payments or non-monetary compensation, including replacement of, or substitution for, damaged or lost property or relocation of Tlicho citizens or their property, or any combination of those forms of compensation.

45. (1) Subsection 80(1) of the French version of the Act is replaced by the following:

Obligation de fournir les matériaux — premières nations des Gwich’in et du Sahtu

80. (1) Les premières nations des Gwich’in ou du Sahtu sont tenues, sur demande, de fournir aux ministères et organismes des gouvernements fédéral et territorial ou à toute personne les matériaux de construction — sable, gravier, argile et autres — se trouvant sur leurs terres, et d’y donner accès, dans les cas où il n’existe aucune autre source d’approvisionnement accessible, sans difficulté excessive, dans la région avoisinante.

(2) The portion of subsection 80(3) of the Act before paragraph (a) is replaced by the following:

Reference to Board

(3) On application by the person or department or agency requesting the supply or access, the Gwich’in Land and Water Board or the Sahtu Land and Water Board, as the case may be, shall

46. The Act is amended by adding the following after section 80:

Duty to supply — Tlicho Government

80.1 (1) The Tlicho Government shall supply, and permit access to, sand, gravel, clay and like construction materials situated on Tlicho lands to any person that requests it, including any department or agency of the federal or territorial government or any local government of a Tlicho community.

Exception

(2) Subsection (1) does not apply if the materials are to be used on lands other than Tlicho lands, unless no alternate source of supply is reasonably available in an area closer to the lands where the materials are to be used.

Compensation — Tlicho Government

(3) The Tlicho Government is entitled to be paid for the value of materials supplied under subsection (1) and for the exercise of a right of access to the materials under that subsection, unless the materials are to be used for a public purpose on Tlicho lands or in a Tlicho community or for a public road contiguous to Tlicho lands or to a Tlicho community.

Reference to Wekeezhii Land and Water Board

(4) On application by any person, department, agency or government requesting the supply of, or access to, materials under subsection (1) and after the applicant has participated in mediation under chapter 6 of the Tlicho Agreement, the Wekeezhii Land and Water Board shall

(a) determine, for the purpose of subsection (2), whether an alternate source of supply is reasonably available in an area closer to the lands where the materials are to be used;

(b) determine, for the purpose of subsection (3), whether the materials are to be used for a public purpose on Tlicho lands or in a Tlicho community or for a public road contiguous to Tlicho lands or a Tlicho community;

(c) resolve any dispute concerning terms or conditions of supply or access, excluding the amount to be paid under subsection (3); or

(d) resolve any dispute concerning conflicting uses of materials referred to in subsection (1) by the applicant and by the Tlicho Government or Tlicho citizens.

Reference to Board by Tlicho Government

(5) In the case of a dispute referred to in paragraph (4)(d), an application for its resolution may also be made to the Board by the Tlicho Government after it has participated in mediation under chapter 6 of the Tlicho Agreement.

47. Sections 82 and 83 of the Act are replaced by the following:

Consultation with first nations and Tlicho Government

82. (1) The federal Minister shall consult the Gwich’in and Sahtu First Nations and the Tlicho Government with respect to the amendment of the Northwest Territories Waters Act or regulations made under that Act.

Consultation with boards

(2) The federal Minister shall consult the boards with respect to the amendment of this Act or the Northwest Territories Waters Act or the making or amendment of any instrument pursuant to this Act or that Act.

Policy Directions

Minister’s policy directions to board

83. (1) The federal Minister may, after consultation with a board, give written policy directions binding on the board with respect to the exercise of any of its functions under this Part. The federal Minister shall also consult the Tlicho Government before giving such written policy directions to the Wekeezhii Land and Water Board.

Policy directions by the Tlicho Government to the Wekeezhii Board

(2) The Tlicho Government may, after consultation with the Wekeezhii Land and Water Board and the federal Minister, give written policy directions with respect to the exercise of any of its functions under this Part in relation to the use of Tlicho lands. Policy directions shall be binding on the Board to the extent that compliance with them does not require the Board to exceed its approved budget.

Limitation

(3) Except as provided by subsection (4), policy directions do not apply in respect of any application that, at the time the directions are given, is pending before a board or has been approved by a board and is awaiting approval under section 81.

Exception

(4) Policy directions apply in respect of an application referred to in subsection (3) if their non-application could result in the inconsistency of a licence, permit or authorization with another Act or with a regulation or order made under another Act.

Conflict between policy directions

(5) If there is a conflict between policy directions given by the federal Minister under subsection (1) and policy directions given by the Tlicho Government under subsection (2), the policy directions given under subsection (2) prevail to the extent of the conflict.

Conflict between legislation and policy directions

(6) If there is a conflict between policy directions given by the federal Minister or the Tlicho Government under this section and the provisions of any Act of Parliament, any regulations made under an Act of Parliament or any territorial law, those provisions prevail to the extent of the conflict.

48. Section 85 of the Act is amended by adding the following after subsection (2):

Notice to Tlicho Government

(2.1) An inspector shall, if it is reasonable to do so, give the Tlicho Government prior notice of entry by the inspector on Tlicho lands.

49. Section 89 of the Act is amended by adding the following after subsection (1):

Notice to Tlicho Government by water inspector

(1.1) An inspector designated under the Northwest Territories Waters Act shall, if it is reasonable to do so, give the Tlicho Government prior notice of entry on Tlicho lands.

50. The portion of section 90 of the Act before paragraph (a) is replaced by the following:

Regulations respecting the use of land

90. The Governor in Council may, following consultation by the federal Minister with first nations and the Tlicho Government, make regulations respecting the protection, control and use of lands in the Mackenzie Valley and, in particular, may make regulations

51. The Act is amended by adding the following after section 90:

Prohibition — Tlicho lands

90.1 Even if the regulations do not require a permit or authorization under Part 3 or 4 for a particular use of land, no person shall use Tlicho lands without such a permit or authorization if one is required by a Tlicho law for uses of that type.

Exemption for use of land in Tlicho communities

90.2 Despite the regulations, a permit or authorization under Part 3 or 4 for a particular use of land in a Tlicho community is not required if the local government of that community has enacted a bylaw providing that one is not required for uses of that type.

52. Paragraph 91(b) of the Act is replaced by the following:

(b) respecting the determination of matters in dispute under section 80 or 80.1.

53. (1) Subsection 92(1) of the Act is replaced by the following:

Principal offences

92. (1) Every person who contravenes section 90.1, any provision of the regulations, any condition of a permit or an order of an inspector under subsection 86(1) or (2) is guilty of an offence and liable on summary conviction to a fine not exceeding $15,000 or to imprisonment for a term not exceeding six months, or to both.

(2) Subsection 92(2) of the English version of the Act is replaced by the following:

Reparation

(2) In addition to the penalty provided by subsection (1), a court that convicts a person of using land without a permit may, taking into account the nature of the offence and the circumstances of its commission, order the person to take any measures that it considers reasonable in order to repair or limit any damage resulting from the act or omission that constituted the offence.

54. Section 95 of the Act is replaced by the following:

Fees

95. Notwithstanding subsection 14(1) of the Northwest Territories Waters Act, the Gwich’in and Sahtu First Nations and the Tlicho Government are not required to pay any fee in respect of the use of waters or the deposit of waste for non-commercial purposes on their first nation lands or Tlicho lands, as the case may be.

55. Subsections 96(2) and (3) of the Act are replaced by the following:

Terms defined in Part 3

(2) In this Part, the expressions “first nation lands”, “land”, “management area” and “waters” have the same meaning as in Part 3.

Meaning of “permit”

(3) For the purposes of this Part, references to a permit in section 90, in the regulations made pursuant to that section and in sections 90.1, 90.2 and 92 include a permit as defined in subsection (1).

56. Subsections 99(2) to (4) of the Act are replaced by the following:

Regional panels — Gwich’in and Sahtu Boards

(2) On the coming into force of this Part, a board established by section 54 or 56 continues as a regional panel of the Board under the same name and in respect of the same management area as that of the board. Its members become members of the Board.

Regional panel — Wekeezhii Board

(2.1) Six months after the coming into force of section 57.1, the board established by that section continues as a regional panel of the Board under the same name and in respect of the same management area as that of the board. Its members become members of the Board.

Applicable provisions

(3) The provisions of Part 1 respecting the appointment, tenure and removal from office of members of a board and respecting the chairperson of a board, and the provisions of Part 3 respecting the appointment of members of a board, the quorum of a board and its main office, continue to apply to a regional panel.

Composition

(4) In addition to the members of the regional panels referred to in subsections (2) and (2.1) and a chairperson, the Board shall, subject to subsection 108(7), consist of

(a) two members appointed following consultation by the federal Minister with the first nations and the Tlicho Government;

(b) one member appointed on the nomination of the territorial Minister; and

57. The heading before section 102 of the French version of the Act is replaced by the following:

Mission et compétence de l’Office

58. Section 102 of the Act is replaced by the following:

Objectives — Board

101.1 (1) The objectives of the Board are to provide for the conservation, development and utilization of land and water resources in a manner that will provide the optimum benefit generally for all Canadians and in particular for residents of the Mackenzie Valley.

Objectives — Gwich’in and Sahtu regional panels

(2) The objectives of a regional panel referred to in subsection 99(2) are to provide for the conservation, development and utilization of land and water resources in a manner that will provide the optimum benefit for residents of its management area and of the Mackenzie Valley and for all Canadians.

Objectives — Wekeezhii regional panel

(3) The objectives of the regional panel referred to in subsection 99(2.1) are to provide for the conservation, development and utilization of land and water resources in a manner that will provide the optimum benefit generally for all Canadians and in particular for residents of its management area.

Jurisdiction — Board

102. (1) The Board has jurisdiction in respect of all uses of land or waters or deposits of waste in the Mackenzie Valley for which a permit is required under Part 3 or a licence is required under the Northwest Territories Waters Act, and for that purpose the Board has the powers and duties of a board established under Part 3, other than powers under sections 78, 79 and 79.2 to 80.1, as if a reference in that Part to a management area were a reference to the Mackenzie Valley, except that, with regard to subsection 61(2), the reference to management area continues to be a reference to Wekeezhii.

Jurisdiction — regional panels

(2) A regional panel of the Board shall exercise

(a) the powers and duties referred to in subsection (1) in respect of a use of land or waters or a deposit of waste that is to take place, and that is likely to have an impact, wholly within the management area of the regional panel; and

(b) the powers conferred by sections 78, 79 and 79.2 to 80.1 on the board established under Part 3 for that management area.

59. (1) Subsection 103(1) of the Act is replaced by the following:

Applications to Board

103. (1) An application shall be made to the Board where the application relates to a use of land or waters or a deposit of waste

(a) that is to take place, or is likely to have an impact, in more than one management area, or in a management area and an area outside any management area; or

(b) that is to take place wholly outside any management area.

(2) Subsection 103(2) of the English version of the Act is replaced by the following:

Applications to regional panel

(2) An application relating to a use of land or waters or a deposit of waste described in subsection 102(2), including an application relating to a licence or permit for such a use or deposit issued pursuant to Part 3 before the coming into force of this Part, shall be made to the regional panel of the Board for the management area referred to in that subsection.

60. Section 104 of the Act is replaced by the following:

Power of chairperson

104. Applications referred to in subsection 103(1) shall be disposed of by three or more members of the Board designated by the chairperson for that purpose, including at least one of the members appointed to a regional panel — on the nomination of a first nation or by the Tlicho Government — or appointed to the Board following consultation with first nations and the Tlicho Government and at least one of the members of the Board not so appointed.

61. The Act is amended by adding the following after section 106:

Requirement to make recommendations

106.1 (1) The Board shall, at the request of the federal Minister, make recommendations to the federal Minister with respect to the amendment of this Act or the Northwest Territories Waters Act or the making or amendment of any instrument under this Act or that Act.

Discretion to make recommendations

(2) The Board may make recommendations to

(a) the Minister responsible for any Act of Parliament regarding the use of land or waters or the deposit of waste, with respect to the amendment of that Act or the making or amendment of any instrument under that Act;

(b) the territorial Minister with respect to the amendment of territorial laws regarding the use of land or waters or the deposit of waste;

(c) a local government with respect to the amendment of bylaws enacted by that government regarding the use of land or waters or the deposit of waste; and

(d) the Tlicho Government with respect to the amendment of Tlicho laws regarding the use of Tlicho lands or waters on those lands or a deposit of waste on those lands or in those waters.

62. Subsections 108(1) and (2) of the Act are replaced by the following:

Establishment of additional panels

108. (1) The Governor in Council may, on the recommendation of the federal Minister, establish up to two regional panels of the Board in addition to those referred to in subsections 99(2) and (2.1).

Powers

(2) The area of the Mackenzie Valley in which such a regional panel has jurisdiction shall be specified by the Governor in Council, following consultation with affected first nations, which area must be wholly outside any management area. Subsections 102(2) and 103(2) to (5) apply in relation to that area with such modifications as are required.

63. The Act is amended by adding the following after section 109:

Powers of Tlicho Government

Policy directions by the Tlicho Government

109.1 The Tlicho Government may exercise the same powers and shall perform the same duties in relation to the Board and the regional panel of the Board referred to in subsection 99(2.1) as those that the Tlicho Government has under section 83 in relation to the Wekeezhii Land and Water Board.

Precedence Relating to Policy Directions

Conflict between policy directions

109.2 (1) If there is a conflict between policy directions given by the federal Minister under section 109 and policy directions given by the Tlicho Government under section 109.1, the policy directions under section 109.1 prevail to the extent of the conflict.

Conflict between legislation and policy directions

(2) If there is a conflict between policy directions given by the federal Minister under section 109 or by the Tlicho Government under section 109.1 and the provisions of any Act of Parliament, any regulations made under an Act of Parliament or any territorial law, those provisions prevail to the extent of the conflict.

64. The heading “Interpretation” before section 111 of the Act is replaced by the following:

Interpretation and Application

65. (1) The portion of section 111 of the Act before the definition “designated regulatory agency” is replaced by the following:

Definitions

111. (1) The following definitions apply in this Part.

2000, c. 32, s. 55

(2) The definition “development” in subsection 111(1) of the Act is replaced by the following:

“development”
« projet de développement »

“development” means any undertaking, or any part or extension of an undertaking, that is carried out on land or water and includes an acquisition of lands pursuant to the Historic Sites and Monuments Act and measures carried out by a department or agency of government leading to the establishment of a park subject to the Canada National Parks Act or the establishment of a park under a territorial law.

(3) Section 111 of the Act is amended by adding the following after subsection (1):

Application

(2) This Part applies in respect of developments to be carried out wholly or partly within the Mackenzie Valley and, except for section 142, does not apply in respect of developments wholly outside the Mackenzie Valley.

66. (1) Subsection 112(2) of the Act is replaced by the following:

Nominations by first nations and the Tlicho Government

(2) One half of the members of the Review Board other than the chairperson shall be persons appointed on the nomination of first nations and the Tlicho Government, including at least one nominated by the Gwich’in First Nation, one nominated by the Sahtu First Nation and one nominated by the Tlicho Government.

(2) Subsection 112(3) of the English version of the Act is replaced by the following:

Government members

(3) Of the members of the Review Board other than the chairperson and those appointed in accordance with subsection (2), at most one half shall be nominated by the territorial Minister.

(3) Subsection 112(4) of the Act is replaced by the following:

Quorum

(4) A quorum of the Review Board consists of five members, including two of the members appointed in accordance with subsection (2) and two of the members not so appointed other than the chairperson.

67. Section 115 of the Act is amended by striking out the word “and” at the end of paragraph (a), by adding the word “and” at the end of paragraph (b) and by adding the following after paragraph (b):

(c) the importance of conservation to the well-being and way of life of the aboriginal peoples of Canada to whom section 35 of the Constitution Act, 1982 applies and who use an area of the Mackenzie Valley.

68. The Act is amended by adding the following after section 115:

Considerations

115.1 In exercising its powers, the Review Board shall consider any traditional knowledge and scientific information that is made available to it.

69. Paragraph 116(b) of the Act is replaced by the following:

(b) proposals that are the subject of agreements referred to in paragraph 141(2)(a) or (3)(b), to the extent provided by such agreements.

70. (1) Paragraph 117(2)(d) of the Act is replaced by the following:

(d) where the development is likely to have a significant adverse impact on the environment, the need for mitigative or remedial measures; and

(2) Section 117 of the Act is amended by adding the following after subsection (3):

Joint panels

(4) Subsections (2) and (3) apply in respect of an examination of a proposal for a development by a review panel, or a joint panel, established jointly by the Review Board and any other person or body.

71. Section 118 of the Act is replaced by the following:

Implementation of proposals

118. (1) No licence, permit or other authorization required for the carrying out of a development may be issued under any federal, territorial or Tlicho law unless the requirements of this Part have been complied with in relation to the development.

Implementation of proposals

(2) Where the Gwich’in or Sahtu First Nation, the Tlicho Government, a local government or a department or agency of the federal or territorial government proposes to carry out a development that does not require a licence, permit or other authorization under any federal, territorial or Tlicho law, it shall comply with the requirements of this Part before taking any irrevocable action in relation to the development.

72. The portion of section 120 of the Act before paragraph (a) is replaced by the following:

Guidelines

120. Following consultation with first nations, the Tlicho Government and the federal and territorial Ministers and subject to any regulations made under paragraph 143(1)(a), the Review Board may establish guidelines respecting the process established by this Part, including guidelines

73. Section 121 of the Act is replaced by the following:

Written reasons

121. The Review Board, a review panel thereof, a review panel, or a joint panel, established jointly by the Review Board and any other person or body, the federal Minister, a responsible minister, a designated regulatory agency, a regulatory authority, a department or agency of the federal or territorial government, a local government, the Gwich’in or Sahtu First Nation or the Tlicho Government shall issue and make available to the public written reasons for any decision or recommendation made under the process established by this Part.

74. The Act is amended by adding the following after section 123:

Consultation

123.1 In conducting a review or examination of the impact on the environment of a development, a review panel of the Review Board or a review panel, or a joint panel, established jointly by the Review Board and any other person or body,

(a) shall carry out any consultations that are required by any of the land claim agreements; and

(b) may carry out other consultations with any persons who use an area where the development might have an impact on the environment.

Conflict of interest

123.2 (1) A person shall not be appointed, or continue, as a member of a review panel of the Review Board or of a review panel, or a joint panel, established jointly by the Review Board and any other person or body, if doing so would place the member in a material conflict of interest.

Status or entitlements under agreement

(2) A person is not in a material conflict of interest merely because of any status or entitlement conferred on the person under the Gwich’in Agreement, the Sahtu Agreement, the Tlicho Agreement or any other agreement between a first nation and Her Majesty in right of Canada for the settlement of a claim to lands.

Nominations

123.3 In appointing a review panel of the Review Board or a review panel, or a joint panel, established jointly by the Review Board and any other person or body, the Review Board and those other persons or bodies shall comply with the requirements of land claim agreements respecting nominations for appointment.

75. (1) The portion of subsection 124(2) of the Act before paragraph (a) is replaced by the following:

Proposal not requiring application

(2) Where a development that does not require a licence, permit or other authorization under any federal or territorial law is proposed to be carried out by a department or agency of the federal or territorial government or by the Gwich’in or Sahtu First Nation or the Tlicho Government, the body proposing to carry out that development shall, after notifying the Review Board in writing of the proposal for the development, conduct a preliminary screening of the proposal, unless

(2) Subsection 124(3) of the Act is replaced by the following:

Preliminary screening by Gwich’in, Sahtu or Tlicho

(3) The Gwich’in First Nation, the Sahtu First Nation or the Tlicho Government, as the case may be, may conduct a preliminary screening of a proposal for a development to determine whether to refer the proposal for an environmental assessment in accordance with paragraph 126(2)(b) or (c).

Cooperation

(4) Where more than one body conducts a preliminary screening in respect of a development, any of them may consult the others, adopt another’s report or participate in a joint preliminary screening and, where one of them is a board established under Part 3 or 4, the others are not required to conduct a preliminary screening.

76. (1) Paragraphs 126(2)(b) and (c) of the Act are replaced by the following:

(b) the Gwich’in or Sahtu First Nation, in the case of a development to be carried out in its settlement area or a development that might have an impact on the environment in that settlement area;

(c) the Tlicho Government, in the case of a development to be carried out wholly or partly in the part of Monfwi Gogha De Niitlee that is in the Northwest Territories or a development that might have an impact on the environment in that part; or

(d) a local government, in the case of a development to be carried out within its boundaries or a development that might have an impact on the environment within its boundaries.

(2) Subsection 126(4) of the Act is replaced by the following:

For greater certainty

(4) For greater certainty, subsections (2) and (3) apply even if a preliminary screening has not been commenced or, if commenced, has not been completed.

77. The Act is amended by adding the following after section 127:

Consultation

127.1 Before completing an environmental assessment of a proposal for a development that is to be carried out wholly or partly on first nation lands as defined in section 51 or on Tlicho lands, the Review Board shall consult the first nation on whose lands the development is to be carried out or, if the development is to be carried out on Tlicho lands, the Tlicho Government.

78. (1) Subsection 128(2) of the Act is replaced by the following:

Report to ministers, agencies and Tlicho Government

(2) The Review Board shall make a report of an environmental assessment to

(a) the federal Minister, who shall distribute it to every responsible minister;

(b) any designated regulatory agency from which a licence, permit or other authorization is required for the carrying out of the development; and

(2) Subsection 128(3) of the French version of the Act is replaced by the following:

Copie

(3) L’Office adresse une copie du rapport au promoteur du projet de développement, à l’organe en ayant effectué l’examen préalable et, en cas de renvoi effectué en vertu du paragraphe 126(2), au ministère, à l’organisme, à la première nation, au gouvernement tlicho ou à l’administration locale concernée.

79. Section 129 of the Act is replaced by the following:

Delay

129. Where the Review Board makes a determination under paragraph 128(1)(a),

(a) a regulatory authority, a designated regulatory agency or the Tlicho Government shall not issue a licence, permit or other authorization for the development, and

(b) where no licence, permit or authorization is required under any federal, territorial or Tlicho law for the development, the person or body that proposes to carry it out shall not proceed,

before the expiration of ten days after receiving the report of the Review Board.

80. (1) Section 130 of the Act is amended by adding the following after subsection (1):

Consultation

(1.1) Before making an order under paragraph (1)(a) or a referral under paragraph (1)(c), the federal Minister and the responsible ministers shall consult the Tlicho Government if the development is to be carried out wholly or partly on Tlicho lands.

(2) Subsection 130(5) of the Act is replaced by the following:

Effect of decision

(5) The federal Minister and responsible ministers shall carry out a decision made under this section to the extent of their respective authorities. A first nation, local government, regulatory authority or department or agency of the federal or territorial government affected by a decision made under this section shall act in conformity with the decision to the extent of their respective authorities.

81. The Act is amended by adding the following after section 131:

Decision by Tlicho Government

131.1 (1) If a development is to be carried out wholly or partly on Tlicho lands, the Tlicho Government shall, after considering a report of the Review Board containing a recommendation made under subparagraph 128(1)(b)(ii),

(a) adopt the recommendation or refer it back to the Review Board for further consideration; or

(b) after consulting the Review Board, adopt the recommendation with modifications or reject it.

Effect of decision

(2) The Tlicho Government shall carry out, to the extent of its authority, any recommendation that it adopts.

Additional information

(3) If the Tlicho Government considers any new information that was not before the Review Board, or any matter of public concern that was not referred to in the Review Board’s reasons, the new information or matter shall be identified in the decision made under this section and in any consultation under paragraph (1)(b).

Conservation

131.2 In making a decision under paragraph 130(1)(b) or subsection 131(1) or 131.1(1), the federal Minister and the responsible ministers, a designated regulatory agency or the Tlicho Government, as the case may be, shall consider the importance of the conservation of the lands, waters and wildlife of the Mackenzie Valley on which the development might have an impact.

82. Subsections 132(2) to (4) of the Act are replaced by the following:

Expert members

(2) A review panel may, in addition to members of the Review Board, include as members of the panel persons having particular expertise related to the development.

Board members to participate in appointments

(3) The members of the Review Board who participate in the appointment of a review panel must include in equal numbers

(a) members who were appointed on the nomination of a first nation or the Tlicho Government; and

(b) members not so appointed, other than the chairperson.

83. The Act is amended by adding the following after section 133:

Coordination

133.1 The Review Board shall to the extent possible coordinate any environmental impact review conducted by a review panel of a proposal for a development that, as determined by the Review Board, is to be carried out partly outside the Mackenzie Valley with any examination of the environmental impact of that development conducted by another authority responsible for the examination of environmental effects of the part of the development to be carried out outside the Mackenzie Valley.

84. (1) Paragraph 134(1)(a) of the Act is replaced by the following:

(a) the preparation by the Review Board of terms of reference for the review panel, after consultation with the responsible ministers, with any first nation affected by the proposal and, if the Board has determined that the development is likely to have a significant adverse impact on the environment, or to be a cause of significant public concern, in Monfwi Gogha De Niitlee, with the Tlicho Government;

(2) Subsection 134(3) of the Act is replaced by the following:

Submission to ministers, agencies and Tlicho Government

(3) The report of a review panel shall be submitted to

(a) the federal Minister, who shall distribute it to every responsible minister;

(b) any designated regulatory agency from which a licence, permit or other authorization is required for the carrying out of the development; and

85. Subsection 136(2) of the Act is replaced by the following:

Effect of decision

(2) The federal Minister and responsible ministers shall carry out a decision made under section 135 to the extent of their respective authorities. A first nation, local government, regulatory authority or department or agency of the federal or territorial government affected by a decision under that section shall act in conformity with the decision to the extent of their respective authorities.

86. The Act is amended by adding the following after section 137:

Decision by Tlicho Government

137.1 (1) If a development is to be carried out wholly or partly on Tlicho lands, the Tlicho Government shall, after considering the report of a review panel,

(a) adopt the recommendation of the review panel or refer it back to the panel for further consideration; or

(b) after consulting the review panel, adopt the recommendation with modifications or reject it.

Additional information

(2) If the Tlicho Government considers any new information that was not before the review panel, or any matter of public concern that was not referred to in the review panel’s reasons, the new information or matter shall be identified in the decision made under this section and in any consultation under paragraph (1)(b).

Effect of decision

(3) The Tlicho Government shall carry out, to the extent of its authority, any recommendation that it adopts.

Conservation

137.2 In making a decision under subsection 135(1), 137(1) or 137.1(1), the federal Minister and the responsible ministers, a designated regulatory agency or the Tlicho Government, as the case may be, shall consider the importance of the conservation of the lands, waters and wildlife of the Mackenzie Valley on which the development might have an impact.

Consultation

137.3 Before making a decision under subsection 135(1), 137(1) or 137.1(1) in respect of a proposal for a development that, as determined by the Review Board, is to be carried out partly outside the Mackenzie Valley, the person or body making the decision shall take into consideration any report in respect of the proposal that is submitted by a review panel established under the Canadian Environmental Assessment Act and shall consult every responsible authority to whom the report is submitted under that Act.

87. Sections 138 and 139 of the Act are replaced by the following:

Report by review panel — national interest referral

138. (1) A review panel established under subsection 40(2.1) of the Canadian Environmental Assessment Act in respect of a proposal for a development that was referred pursuant to paragraph 130(1)(c) of this Act shall, in addition to satisfying the requirements of paragraph 41(f) of that Act, submit the report of its recommendations to

(a) the federal Minister, who shall distribute it to every responsible minister;

(b) any designated regulatory agency from which a licence, permit or other authorization is required for the carrying out of the development; and

Provisions applicable

(2) An examination by a review panel referred to in subsection (1) stands in lieu of an environmental impact review and paragraphs 134(1)(b), (d) and (e) and sections 135 to 137.2 apply, with such modifications as may be required, in respect of the examination, except that a recommendation of a panel may not be referred back to the panel for further consideration.

Agreement — national interest referral

138.1 (1) If a proposal for a development that, as determined by the Review Board, is to be carried out partly outside the Mackenzie Valley and either is to be carried out partly in Wekeezhii or might have an impact on the environment in Wekeezhii is referred to the Minister of the Environment under paragraph 130(1)(c), then the Review Board shall enter into an agreement with the Minister of the Environment for the purpose of jointly establishing a review panel and prescribing the manner of its examination of the impact on the environment of the development in accordance with subsection 40(2.1) of the Canadian Environmental Assessment Act.

Mediation

(2) If the Review Board and the Minister of the Environment have not entered into an agreement under subsection (1) within the period fixed by any regulations, they shall participate in mediation in accordance with those regulations for the purpose of reaching an agreement under subsection (1).

Arbitration

(3) If the Review Board and the Minister of the Environment have not entered into an agreement under subsection (1) by the end of any mediation required under subsection (2), they may, within the period fixed by any regulations, by mutual agreement refer any unresolved matter to arbitration in accordance with those regulations.

Where no agreement

(4) Despite subsections (1) to (3), if, within the period fixed by the regulations, an agreement has not been entered into under this section, a panel of the Review Board shall conduct an environmental impact review of the development, but the review shall be limited to the part of the development to be carried out in the Mackenzie Valley.

Agreement — designated regulatory agency

139. (1) Where an environmental impact review of a proposal for a development that, as determined by the Review Board, is to be carried out wholly in the Mackenzie Valley, other than a development that has been referred to the Minister of the Environment under paragraph 130(1)(c), is ordered under this Part, and a licence, permit or other authorization must be issued by a designated regulatory agency in order for the proposed development to be carried out, the Review Board and the agency may enter into an agreement for the examination of the impact of the development on the environment by a joint panel established for that purpose.

Report to ministers, agencies and Tlicho Government

(2) A joint panel so established shall make a report of its examination to

(a) the federal Minister, who shall distribute it to every responsible minister;

(b) any designated regulatory agency from which a licence, permit or other authorization is required for the carrying out of the development; and

Provisions applicable

(3) An examination by a joint panel established under this section stands in lieu of an environmental impact review and paragraphs 134(1)(b), (d) and (e) and sections 135 to 137.2 apply, with such modifications as may be required, in respect of the examination, except that a recommendation of a panel may not be referred back to the panel for further consideration.

88. Subsections 140(2) to (4) of the Act are replaced by the following:

Agreement — other authority

(2) Where the Review Board has determined that a development referred to in subsection (1), other than a development that has been referred to the Minister of the Environment under paragraph 130(1)(c), is likely to have a significant adverse impact on the environment in a region outside the Mackenzie Valley, the Review Board may, with the approval of the federal Minister, enter into an agreement with the authority responsible for the examination of environmental effects in that region to provide for

(a) the coordination of the respective examinations of the environmental impact of the development; or

(b) the examination of the environmental impact of the development by a joint panel established for that purpose.

Report to ministers, agencies and Tlicho Government

(3) A joint panel established under subsection (2) shall make a report of its recommendations to

(a) the federal Minister, who shall distribute it to every responsible minister;

(b) any designated regulatory agency from which a licence, permit or other authorization is required for the carrying out of the development; and

Provisions applicable

(4) An examination by a joint panel established under subsection (2) stands in lieu of an environmental impact review of the proposal and paragraphs 134(1)(b), (d) and (e) and sections 135 to 137.2 apply, with such modifications as may be required, in respect of the examination, except that a recommendation of a panel may not be referred back to the panel for further consideration.

89. (1) The portion of subsection 141(2) of the Act before paragraph (a) is replaced by the following:

Agreement — cases other than Wekeezhii

(2) If an environmental impact review is ordered under subparagraph 128(1)(b)(i), paragraph 128(1)(c) or 130(1)(a), subparagraph 130(1)(b)(ii) or paragraph 131(1)(b) in respect of a proposal for a development referred to in subsection (1), other than a development referred to in subsection (3), the Review Board may, with the approval of the federal Minister,

1998, c. 15, par. 48(e); 2002, c. 7, s. 206(2)(E)

(2) Subsections 141(3) to (5) of the Act are replaced by the following:

Agreement — Wekeezhii

(3) If an environmental impact review is ordered under subparagraph 128(1)(b)(i), paragraph 128(1)(c) or 130(1)(a), subparagraph 130(1)(b)(ii) or paragraph 131(1)(b) in respect of a proposal for a development that, as determined by the Review Board, is to be carried out partly outside the Mackenzie Valley and either is to be carried out partly in Wekeezhii or might have an impact on the environment in Wekeezhii, the Review Board shall enter into an agreement for the purpose of jointly establishing a review panel and prescribing the manner of its examination of the impact on the environment of the development

(a) with an authority responsible for the examination of environmental effects of the part of the development that is to be carried out outside the Mackenzie Valley; or

(b) with the Minister of the Environment if that Minister is authorized under section 40 of the Canadian Environmental Assessment Act to enter into such an agreement.

Where no agreement

(4) Despite subsection (3), if, within the period fixed by the regulations, an agreement has not been entered into under that subsection, a panel of the Review Board shall conduct an environmental impact review of the development, but the review shall be limited to the part of the development to be carried out in the Mackenzie Valley.

Report

(5) A review panel or joint panel established by an agreement referred to in subsection (2) or (3) shall make a report of its examination to

(a) the federal Minister, who shall distribute it to every responsible minister;

(b) any designated regulatory agency from which a licence, permit or other authorization is required for the carrying out of the development;

(c) in the case of a joint panel referred to in paragraph (2)(b) or (3)(a), the minister of the federal, provincial or territorial government having jurisdiction in relation to examinations conducted by the authority referred to in that paragraph; and

(d) the Tlicho Government, if the development is to be carried out partly on Tlicho lands.

Provisions applicable

(6) An examination by a review panel or joint panel referred to in subsection (2) or (3) stands in lieu of an environmental impact review of the proposal referred to in that subsection and paragraphs 134(1)(b), (d) and (e) and sections 135 to 137.2 apply, with such modifications as may be required, in respect of the examination, except that a recommendation of a panel may not be referred back to the panel for further consideration.

90. (1) The portion of subsection 143(1) of the Act before paragraph (a) is replaced by the following:

Regulations

143. (1) The Governor in Council may, following consultation by the federal Minister with the territorial Minister, first nations and the Tlicho Government, make regulations for carrying out the purposes and provisions of this Part and, in particular, regulations

(2) Subsection 143(1) of the Act is amended by striking out the word “and” at the end of paragraph (c) and by adding the following after paragraph (d):

(e) fixing a period for the purposes of subsection 138.1(2) and respecting mediation referred to in that subsection;

(f) fixing the period within which a matter may be referred to arbitration under subsection 138.1(3) and respecting arbitration under that subsection; and

(g) fixing a period for the purposes of subsections 138.1(4) and 141(4).

(3) Subsection 143(2) of the Act is replaced by the following:

Consultation with Review Board

(2) Regulations may only be made under paragraph (1)(a), (d), (e), (f) or (g), or amended under paragraph (1)(b) or (c), following consultation by the federal Minister with the Review Board.

91. Subsection 144(1) of the Act is replaced by the following:

Schedule

144. (1) The Governor in Council may, by regulations made following consultation by the federal Minister with the territorial Minister, the Review Board, the first nations and the Tlicho Government, amend the schedule by adding, or by deleting, the name of any agency, other than a land and water board established by Part 3 or 4, that exercises regulatory powers pursuant to territorial or federal laws and that is not subject to specific control or direction by a minister of the federal or territorial government or the Governor in Council.

92. Section 147 of the Act is replaced by the following:

Consultation with first nations and Tlicho Government

147. (1) A responsible authority that is a minister of the Crown in right of Canada shall carry out the functions referred to in section 146 in consultation with the first nations and the Tlicho Government.

Role of first nations and Tlicho Government

(2) Where a responsible authority is other than a minister of the Crown in right of Canada, the Gwich’in and Sahtu First Nations and the Tlicho Government are entitled to participate in the functions referred to in section 146 in the manner provided by the regulations.

93. (1) Subsection 148(2) of the Act is replaced by the following:

Terms of reference

(2) The federal Minister shall, after consulting the Gwich’in First Nation, the Sahtu First Nation, the Tlicho Government and the territorial government, fix the terms of reference of an environmental audit, including the key components of the environment to be examined.

(2) Subsection 148(5) of the Act is replaced by the following:

Participation by first nations and Tlicho Government

(5) The Gwich’in and Sahtu First Nations and the Tlicho Government are entitled to participate in an environmental audit in the manner provided by the regulations.

94. (1) The portion of section 150 of the Act before paragraph (a) is replaced by the following:

Regulations

150. The Governor in Council may, after consultation by the federal Minister with affected first nations, the Tlicho Government and the territorial Minister, make regulations for carrying out the purposes and provisions of this Part and, in particular, regulations

(2) Paragraph 150(c) of the Act is replaced by the following:

(c) respecting the manner of participation of the Gwich’in and Sahtu First Nations and the Tlicho Government in the functions of a responsible authority that is not a minister of the Crown or in an environmental audit.

Explanatory Notes

Mackenzie Valley Resource Management Act

Clause 15: (1) Existing text of the definitions:

“first nation” means the Gwich’in First Nation, the Sahtu First Nation or bodies representing other Dene or Metis of the North Slave, South Slave or Deh Cho region of the Mackenzie Valley.

“land claim agreement” means the Gwich’in Agreement or the Sahtu Agreement.

“local government” means any local government established under the laws of the Northwest Territories, including a city, town, village, hamlet, charter community or settlement, whether incorporated or not, and includes the territorial government acting in the place of a local government pursuant to those laws.

“settlement area” means a portion of the Mackenzie Valley to which a land claim agreement applies.

“settlement lands” means lands referred to as settlement lands in a land claim agreement.

(2) New.

Clause 16: New.

Clause 17: New.

Clause 18: Existing text of subsection 8(1):

8. (1) The federal Minister shall consult the first nations with respect to the amendment of this Act.

Clause 19: (1) and (2) Existing text of section 11:

11. (1) The members of a board, other than the chairperson and any special members appointed under section 15, shall be appointed by the federal Minister and, to the extent provided in Parts 2 to 5, shall be nominated by a first nation or the territorial Minister or following consultation with first nations.

(2) The federal Minister may appoint

(a) alternate members selected from persons nominated for that purpose by a first nation, or selected following consultation with first nations, to act in the event of the absence or incapacity of members appointed on such nomination or following such consultation, respectively; and

(b) alternate members agreed to by the territorial Minister to act in the event of the absence or incapacity of members other than members referred to in paragraph (a).

Clause 20: Existing text of subsections 12(1) and (2):

12. (1) The chairperson of a board shall be appointed by the federal Minister from persons nominated by a majority of the members.

(2) If a majority of the members does not nominate a person acceptable to the federal Minister within a reasonable time, the Minister may appoint any person as chairperson of the board.

Clause 21: Existing text of subsection 14(3):

(3) A member may not be removed from office except after consultation by the federal Minister with the board and, where applicable, with the territorial Minister or the first nation that nominated the member.

Clause 22: Existing text of section 15:

15. (1) In any case where the Gwich’in Agreement or Sahtu Agreement provides a right of representation, in respect of a decision of a board, to aboriginal persons who are party to an agreement with Her Majesty in right of Canada for the settlement of a claim to lands in the Northwest Territories adjacent to the Mackenzie Valley, those aboriginal persons may nominate a person for appointment as a special member of the board.

(2) Where a nomination is made pursuant to subsection (1), the federal and territorial Ministers may nominate another person for appointment as a special member of the board for the purpose of maintaining the proportion, under any other provision of this Act, of members appointed to the board on the nomination of or following consultation with first nations and other members of the board.

(3) Notwithstanding any provision of this Act respecting the number of persons who may be members of a board, a person nominated pursuant to subsection (1) or (2) shall be appointed by the board as a special member to act in relation to the decision referred to in subsection (1).

Clause 23: Existing text of subsection 16(2):

(2) A member of a board is not placed in a material conflict of interest merely because of any status or entitlement conferred on the member under the Gwich’in Agreement or Sahtu Agreement or under any other agreement between a first nation and Her Majesty in right of Canada for the settlement of a claim to lands.

Clause 24: Existing text of subsection 17(1):

17. (1) Members of a board, other than special members referred to in section 15, shall be paid such fees or other remuneration as the federal Minister may fix.

Clause 25: Existing text of section 22:

22. Subject to any other federal or territorial law, a board may obtain from any department or agency of the federal or territorial government any information in the possession of the department or agency that the board requires for the performance of its functions.

Clause 26: Existing text of section 24:

24. (1) In addition to hearings that a board is authorized or required to hold under this Act, a board may conduct any hearings that it considers to be desirable for the purpose of carrying out any of its functions.

(2) Subject to this Act, the boards shall coordinate their respective hearings in order to avoid duplication.

Clause 27: (1) Existing text of subsection 31(1):

31. (1) Sections 3, 5 and 11 of the Statutory Instruments Act do not apply in respect of rules under section 30, a land use plan or amendment thereto under Part 2, rules under subsection 49(2), guidelines or policies under section 65, policy directions under subsection 82(1), directions under section 106 or guidelines under section 120.

(2) New.

Clause 28: Existing text of the heading and section 32:

Judicial Review

32. Notwithstanding the exclusive jurisdiction referred to in section 18 of the Federal Courts Act, the Attorney General of Canada or anyone directly affected by the matter in respect of which relief is sought may make an application to the Supreme Court of the Northwest Territories for any relief against a board by way of an injunction or declaration or by way of an order in the nature of certiorari, mandamus, quo warranto or prohibition.

Clause 29: (1) Existing text of the definition:

“board” means the Gwich’in Land and Water Board or the Sahtu Land and Water Board established by sections 54 and 56, respectively.

(2) New.

Clause 30: (1) and (2) Existing text of section 52:

52. (1) This Part, except sections 78 and 79, does not apply in respect of the use of land or waters or the deposit of waste within a park to which the Canada National Parks Act applies or within lands acquired pursuant to the Historic Sites and Monuments Act.

(2) Notwithstanding subsection (1), an authority responsible for authorizing uses of land or waters or deposits of waste in a portion of a settlement area excluded by that subsection from the application of this Part shall consult the board established for the settlement area before authorizing any such use or deposit.

(3) A board established for a settlement area shall consult a responsible authority referred to in subsection (2) before issuing a licence, permit or authorization for a use of land or waters or deposit of waste that may have an effect in the portion of the settlement area in which the authority is responsible.

Clause 31: New.

Clause 32: Existing text of section 58:

58. A board shall regulate the use of land and waters and the deposit of waste so as to provide for the conservation, development and utilization of land and water resources in a manner that will provide the optimum benefit to the residents of the settlement area and of the Mackenzie Valley and to all Canadians.

Clause 33: Existing text of subsection 59(1):

59. (1) A board established for a settlement area has jurisdiction in respect of all uses of land in the settlement area for which a permit is required under this Part and may, in accordance with the regulations, issue, amend, renew, suspend and cancel permits and authorizations for the use of land, and approve the assignment of permits.

Clause 34: (1) Existing text of subsection 60(1):

60. (1) A board established for a settlement area has jurisdiction in respect of all uses of waters and deposits of waste in the settlement area for which a licence is required under the Northwest Territories Waters Act and may

(a) issue, amend, renew and cancel licences and approve the assignment of licences, in accordance with that Act, and

(b) exercise any other power of the Northwest Territories Water Board under that Act,

and, for those purposes, references in that Act to that Board shall be read as references to the board established for the settlement area.

(2) Existing text of subsection 60(3):

(3) In respect of a use of waters or deposit of waste in the settlement area that has an effect in a region of the Northwest Territories or Nunavut outside the settlement area, subsections 14(4) and (5) of the Northwest Territories Waters Act apply in relation to the protection of the rights of licensees and other persons referred to in those subsections who are in such a region.

(3) Existing text of subsections 60(4) and (5):

(4) Notwithstanding subsection (1), the following provisions of the Northwest Territories Waters Act do not apply in respect of a settlement area for which a board has been established, namely, sections 10 to 13, subsection 14(6), sections 20 and 22, paragraphs 23(1)(b) and (2)(b), section 24, section 26 except in relation to type A licences under that Act, sections 27 and 28 and subsection 37(2).

(5) Notwithstanding subsection (1), section 31 of the Northwest Territories Waters Act does not apply in respect of first nation lands.

Clause 35: Existing text of section 61:

61. A board may not issue a licence, permit or authorization or make an amendment to a licence, permit or authorization except in accordance with an applicable land use plan under Part 2.

Clause 36: Existing text of subsection 63(2):

(2) A board shall notify affected communities or first nations of an application made to the board for a licence or permit and allow a reasonable period of time for them to make representations to the board with respect to the application.

Clause 37: (1) and (2) Existing text of section 64:

64. (1) A board shall seek and consider the advice of any affected first nation and any appropriate department or agency of the federal or territorial government respecting the presence of heritage resources that might be affected by a use of land or waters or a deposit of waste proposed in an application for a licence or permit.

(2) A board shall seek and consider the advice of the renewable resources board established by the land claim agreement applicable in the settlement area respecting the presence of wildlife and wildlife habitat that might be affected by a use of land or waters or a deposit of waste proposed in an application for a licence or permit.

Clause 38: Existing text of section 68:

68. The board may, and at the request of the federal Minister shall, make recommendations to the federal Minister with respect to the amendment of this Act or the Northwest Territories Waters Act or the making or amendment of any instrument pursuant to this Act or that Act.

Clause 39: New.

Clause 40: Relevant portion of section 76:

76. A board may issue a licence, permit or authorization where the use of land or waters or the deposit of waste proposed by the applicant would, in the opinion of the board, interfere with a first nation’s rights under section 75, if the board is satisfied that

Clause 41: Existing text of the heading and section 77:

Compensation

77. A board may not issue a licence pursuant to section 76 unless

(b) the applicant or the first nation applies to the board for a determination pursuant to subsection 79(1).

Clause 42: Existing text of subsection 78(1):

78. (1) Where a board established for a settlement area determines that a use of waters or a deposit of waste that is proposed, in an application made to a water authority, to be carried out in

(a) an area of the Northwest Territories or Nunavut outside the settlement area, or

(b) a park to which the Canada National Parks Act applies, or lands acquired pursuant to the Historic Sites and Monuments Act, in the settlement area

Clause 43: (1) Existing text of subsection 79(1):

79. (1) If a compensation agreement referred to in section 77 or 78 is not entered into within the period allowed by the rules of the board, the applicant or the first nation may apply to the board for a determination of compensation.

(2) Relevant portion of subsection 79(2):

(2) On an application pursuant to subsection (1), the board shall determine the compensation payable in respect of the proposed use of waters or deposit of waste, taking into consideration

(a) the effect of the proposed use or deposit on

(i) the first nation’s use of waters when on or flowing through its first nation lands or waters adjacent to its first nation lands, or

Clause 44: New.

Clause 45: (1) Existing text of subsection 80(1):

80. (1) The Gwich’in or Sahtu First Nation shall supply and permit access to sand, gravel, clay and like construction materials situated on its first nation lands to any person or any department or agency of the federal or territorial government that requests the same where no alternate source of supply is reasonably available in the surrounding area.

(2) Relevant portion of subsection 80(3):

(3) On application by the person or department or agency requesting the supply or access, the board shall

Clause 46: New.

Clause 47: Existing text of sections 82 and 83:

82. (1) The federal Minister may, after consultation with a board, give written policy directions binding on the board with respect to the exercise of any of its functions under this Part.

(2) Except as provided by subsection (3), policy directions do not apply in respect of any application that, at the time the directions are given, is pending before a board or has been approved by a board and is awaiting approval under section 81.

(3) Policy directions apply in respect of an application referred to in subsection (2) if their non-application could result in the inconsistency of a licence, permit or authorization with another Act or with a regulation or order made under another Act.

83. (1) The federal Minister shall consult the Gwich’in and Sahtu First Nations with respect to the amendment of the Northwest Territories Waters Act or regulations made under that Act.

Clause 48: New.

Clause 49: New.

Clause 50: Relevant portion of section 90:

90. The Governor in Council may, following consultation by the federal Minister with first nations, make regulations respecting the protection, control and use of lands in the Mackenzie Valley and, in particular, may make regulations

Clause 51: New.

Clause 52: Relevant portion of section 91:

91. A board may make rules

...

(b) respecting the determination of matters in dispute under section 80.

Clause 53: (1) and (2) Existing text of subsections 92(1) and (2):

92. (1) Every person who contravenes any provision of the regulations, any condition of a permit or an order of an inspector under subsection 86(1) or (2) is guilty of an offence and liable on summary conviction to a fine not exceeding $15,000 or to imprisonment for a term not exceeding six months, or to both.

(2) In addition to the penalty provided by subsection (1), a court that convicts a person of using land without a permit contrary to the regulations may, taking into account the nature of the offence and the circumstances of its commission, order the person to take any measures that it considers reasonable in order to repair or limit any damage resulting from the act or omission that constituted the offence.

Clause 54: Existing text of section 95:

95. Notwithstanding subsection 14(1) of the Northwest Territories Waters Act, the Gwich’in First Nation and Sahtu First Nation are not required to pay any fee in respect of the use of waters or the deposit of waste for non-commercial purposes on their first nation lands.

Clause 55: Existing text of subsections 96(2) and (3):

(2) In this Part, the expressions “first nation lands”, “land” and “waters” have the same meaning as in Part 3.

(3) For the purposes of this Part, references to a permit in section 90, in the regulations made pursuant to that section and in section 92 include a permit as defined in subsection (1).

Clause 56: Existing text of subsections 99(2) to (4):

(2) On the coming into force of this Part, a board established for a settlement area by Part 3 continues as a regional panel of the Board under the same name and its members become members of the Board.

(3) The provisions of Part 1 respecting the appointment and tenure of members of a board and respecting the chairperson of a board, and the provisions of Part 3 respecting the quorum of a board and its main office, continue to apply to a regional panel.

(4) In addition to the members of the regional panels referred to in subsection (2) and a chairperson, the Board shall, subject to subsection 108(7), consist of

(a) three members appointed following consultation by the federal Minister with the first nations;

(b) one member appointed on the nomination of the territorial Minister; and

Clause 57: Existing text of the heading:

Mandate of Board

Clause 58: Existing text of section 102:

102. (1) The Board has jurisdiction in respect of all uses of land or waters or deposits of waste in the Mackenzie Valley for which a permit is required under Part 3 or a licence is required under the Northwest Territories Waters Act, and for that purpose the Board has the powers and duties of a board established under Part 3, other than powers under sections 78 and 79, as if a reference in that Part to a settlement area were a reference to the Mackenzie Valley.

(2) The regional panel of the Board for a settlement area shall exercise

(b) the powers conferred by sections 78 to 80 on the board established under Part 3 for that settlement area.

Clause 59: (1) and (2) Existing text of subsections 103(1) and (2):

103. (1) An application shall be made to the Board where the application relates to a use of land or waters or a deposit of waste

(a) that is to take place or is likely to have an impact in more than one settlement area, or in a settlement area and an area outside any settlement area; or

(b) that is to take place wholly outside any settlement area.

Clause 60: Existing text of section 104:

104. Applications referred to in subsection 103(1) shall be disposed of by three or more members of the Board designated by the chairperson for that purpose, including at least one of the members appointed to a regional panel on the nomination of a first nation or appointed to the Board following consultation with first nations and at least one of the members of the Board not so appointed.

Clause 61: New.

Clause 62: Existing text of subsections 108(1) and (2):

108. (1) The Governor in Council may, on the recommendation of the federal Minister, establish up to three regional panels of the Board in addition to those referred to in subsection 99(2).

(2) The area of the Mackenzie Valley in which such a regional panel has jurisdiction shall be specified by the Governor in Council, following consultation with affected first nations, and subsections 102(2) and 103(2) to (5) apply in relation to that area with such modifications as are required.

Clause 63: New.

Clause 64: Existing text of the heading:

Interpretation

Clause 65: (1) Relevant portion of section 111:

111. The definitions in this section apply in this Part.

(2) Existing text of the definition:

“development” means any undertaking, or any part of an undertaking, that is carried out on land or water and, except where the context otherwise indicates, wholly within the Mackenzie Valley, and includes measures carried out by a department or agency of government leading to the establishment of a park subject to the Canada National Parks Act and an acquisition of lands pursuant to the Historic Sites and Monuments Act.

(3) New.

Clause 66: (1) to (3) Existing text of subsections 112(2) to (4):

(2) One half of the members of the Review Board other than the chairperson shall be persons appointed on the nomination of first nations, including at least one nominated by the Gwich’in First Nation and one nominated by the Sahtu First Nation.

(3) Of the members of the Review Board other than the chairperson and those nominated by first nations, at most one half shall be nominated by the territorial Minister.

(4) A quorum of the Review Board consists of five members, including two of the members appointed on the nomination of first nations and two of the members not so appointed other than the chairperson.

Clause 67: Relevant portion of section 115:

115. The process established by this Part shall be carried out in a timely and expeditious manner and shall have regard to

Clause 68: New.

Clause 69: Relevant portion of section 116:

116. The Canadian Environmental Assessment Act does not apply in the Mackenzie Valley in respect of proposals for developments other than

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(b) proposals that are the subject of agreements referred to in paragraph 141(2)(a), to the extent provided by such agreements.

Clause 70: (1) Relevant portion of subsection 117(2):

(2) Every environmental assessment and environmental impact review of a proposal for a development shall include a consideration of

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(d) where the development is likely to have a significant adverse impact on the environment, the imposition of mitigative or remedial measures; and

(2) New.

Clause 71: Existing text of section 118:

118. (1) No licence, permit or other authorization required for the carrying out of a development may be issued under any federal or territorial law unless the requirements of this Part have been complied with in relation to the development.

(2) Where the Gwich’in or Sahtu First Nation, a local government or a department or agency of the federal or territorial government proposes to carry out a development that does not require a licence, permit or other authorization, it shall comply with the requirements of this Part before taking any irrevocable action in relation to the development.

Clause 72: Relevant portion of section 120:

120. Following consultation with first nations and the federal and territorial Ministers and subject to any regulations made under paragraph 143(1)(a), the Review Board may establish guidelines respecting the process established by this Part, including guidelines

Clause 73: Existing text of section 121:

121. The Review Board, a review panel thereof, the federal Minister, a responsible minister, a designated regulatory agency, a regulatory authority or the Gwich’in or Sahtu First Nation shall issue and make available to the public written reasons for any decision or recommendation made under the process established by this Part.

Clause 74: New.

Clause 75: (1) Relevant portion of subsection 124(2):

(2) Where a development that does not require a licence, permit or other authorization is proposed to be carried out by a department or agency of the federal or territorial government or by the Gwich’in or Sahtu First Nation, the department or agency or the first nation shall, after notifying the Review Board in writing of the proposal for the development, conduct a preliminary screening of the proposal, unless

(2) Existing text of subsection 124(3):

(3) Where more than one body is required by subsection (1) or (2) to conduct a preliminary screening in respect of a development, any of them may consult the others, adopt another’s report or participate in a joint preliminary screening and, where one of them is a board established under Part 3 or 4, the others are not required to conduct a preliminary screening.

Clause 76: (1) Relevant portion of subsection 126(2):

(2) Notwithstanding any determination on a preliminary screening, the Review Board shall conduct an environmental assessment of a proposal for a development that is referred to it by

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(b) the Gwich’in or Sahtu First Nation, in the case of a development to be carried out in its settlement area or a development that might, in its opinion, have an adverse impact on the environment in that settlement area; or

(c) a local government, in the case of a development to be carried out within its boundaries or a development that might, in its opinion, have an adverse impact on the environment within its boundaries.

(2) Existing text of subsection 126(4):

(4) Subsections (2) and (3) apply in respect of a development for which no preliminary screening is conducted by reason that

(a) a licence, permit or other authorization is required for the carrying out of the development under a federal or territorial law other than one specified in regulations made under paragraph 143(1)(b),

(b) the development is exempted by regulations made under paragraph 143(1)(c), or

but, in the cases referred to in paragraphs (b) and (c), the Review Board may only conduct an environmental assessment on its own motion if, in its opinion, the development involves issues of special environmental concern.

Clause 77: New.

Clause 78: (1) and (2) Existing text of subsections 128(2) and (3):

(2) The Review Board shall make a report of an environmental assessment to

(a) the federal Minister, who shall distribute it to every responsible minister; and

(b) any designated regulatory agency from which a licence, permit or other authorization is required for the carrying out of the development.

(3) The Review Board shall provide a copy of its report to any body that conducted a preliminary screening of the proposal, to any body that referred the proposal to the Review Board under subsection 126(2) and to the person or body that proposes to carry out the development.

Clause 79: Existing text of section 129:

129. Where the Review Board makes a determination under paragraph 128(1)(a),

(a) no regulatory authority or designated regulatory authority shall issue a licence, permit or other authorization for the development, or

(b) where no licence, permit or authorization is required for the development, the person or body that proposes to carry it out shall not proceed,

before the expiration of ten days after receiving the report of the Review Board.

Clause 80: (1) New.

(2) Existing text of subsection 130(5):

(5) A first nation, local government, regulatory authority or department or agency of the federal or territorial government affected by a decision made under this section shall act in conformity with the decision to the extent of its authority.

Clause 81: New.

Clause 82: Existing text of subsections 132(2) to (4):

(2) A review panel may include, in addition to members of the Review Board, persons having particular expertise related to the development, and section 16 applies to any such member.

(3) The members of the Review Board who participate in the appointment of a review panel must include in equal numbers

(a) members who were appointed on the nomination of first nations; and

(b) members not so appointed, other than the chairperson.

(4) In an environmental impact review of a proposal for a development to be carried out wholly or partly in a settlement area, the members of the Review Board appointed to the review panel shall, unless otherwise agreed by the first nation and the federal Minister, include members nominated to the panel by the Gwich’in or Sahtu First Nation, as the case may be, which members must comprise

(a) half the members of the panel other than the chairperson, where it has been determined that the significant adverse impact referred to in subsection 128(4), 130(2) or 131(3), or the cause of the significant public concern referred to in that subsection, will be wholly within the first nation’s settlement area;

(b) at least two of the members of the panel, where it has been determined that the significant adverse impact or the cause of significant public concern will be predominantly within the first nation’s settlement area; and

(c) at least one member of the panel, where it has been determined that the significant adverse impact or the cause of significant public concern will be partially but not predominantly within the first nation’s settlement area.

Clause 83: New.

Clause 84: (1) Relevant portion of subsection 134(1):

134. (1) An environmental impact review of a proposal for a development includes

(a) the preparation by the Review Board of terms of reference for the review panel, after consultation with the responsible ministers and any first nation affected by the proposal;

(2) Existing text of subsection 134(3):

(3) The report of a review panel shall be submitted to

(a) the federal Minister, who shall distribute it to every responsible minister; and

(b) any designated regulatory agency from which a licence, permit or other authorization is required for the carrying out of the development.

Clause 85: Existing text of subsection 136(2):

(2) A first nation, local government, regulatory authority or department or agency of the federal or territorial government affected by a decision under section 135 shall act in conformity with the decision to the extent of its authority.

Clause 86: New.

Clause 87: Existing text of sections 138 and 139:

(a) to the federal Minister, who shall distribute it to every responsible minister; and

(b) to any designated regulatory agency from which a licence, permit or other authorization is required for the carrying out of the development.

(2) An examination by a review panel referred to in subsection (1) stands in lieu of an environmental impact review and sections 135 to 137 apply, with such modifications as may be required, in respect of the examination.

139. (1) Where an environmental impact review of a proposal is ordered under this Part, and a licence, permit or other authorization must be issued by a designated regulatory agency in order for the proposed development to be carried out, the Review Board and the agency may enter into an agreement for the examination of the impact of the development on the environment by a joint panel established for that purpose.

(2) A joint panel so established shall make a report of its examination to

(a) the federal Minister, who shall distribute it to every responsible minister; and

(b) any designated regulatory agency from which a licence, permit or other authorization is required for the carrying out of the development.

(3) An examination by a joint panel established under this section stands in lieu of an environmental impact review and sections 135 to 137 apply, with such modifications as may be required, in respect of the examination.

Clause 88: Existing text of subsections 140(2) to (4):

(2) Where it has been determined pursuant to subsection 128(4), 130(2) or 131(3) that a development referred to in subsection (1) is likely to have a significant adverse impact on the environment in a region outside the Mackenzie Valley, the Review Board may, with the approval of the federal Minister, enter into an agreement with the authority responsible for the examination of environmental effects in that region to provide for

(a) the coordination of the respective examinations of the environmental impact of the development; or

(b) the examination of the environmental impact of the development by a joint panel established for that purpose.

(3) A joint panel established under subsection (2) shall make a report of its recommendations to

(a) the federal Minister, who shall distribute it to every responsible minister; and

(b) any designated regulatory agency from which a licence, permit or other authorization is required for the carrying out of the development.

(4) An examination by a joint panel established under subsection (2) stands in lieu of an environmental impact review of the proposal and sections 135 to 137 apply, with such modifications as may be required, in respect of the examination.

Clause 89: (1) Relevant portion of subsection 141(2):

(2) Where an environmental impact review of a proposal for such a development is ordered in respect of the Mackenzie Valley, the Review Board may, with the approval of the federal Minister,

(2) Existing text of subsections 141(3) to (5):

(3) Where a review panel referred to in paragraph (2)(a) is established in relation to a development to be carried out partly in a region of the Northwest Territories, the Yukon Territory or Nunavut, at least one quarter of its members, excluding the chairperson, must be appointed on the nomination of first nations and other aboriginal groups affected by the proposed development.

(4) A review panel or joint panel established by an agreement referred to in subsection (2) shall make a report of its examination to

(a) the federal Minister, who shall distribute it to every responsible minister;

(b) any designated regulatory agency from which a licence, permit or other authorization is required for the carrying out of the development; and

(c) in the case of a joint panel referred to in paragraph (2)(b), the minister of the federal, provincial or territorial government having jurisdiction in relation to examinations conducted by the authority referred to in that paragraph.

(5) An examination by a review panel or joint panel referred to in subsection (2) stands in lieu of an environmental impact review of the proposal referred to in that subsection and sections 135 to 137 apply, with such modifications as may be required, in respect of the examination.

Clause 90: (1) and (2) Relevant portion of subsection 143(1):

143. (1) The Governor in Council may, following consultation by the federal Minister with the territorial Minister and first nations, make regulations for carrying out the purposes and provisions of this Part and, in particular, regulations

(3) Existing text of subsection 143(2):

(2) Regulations may only be made under paragraph (1)(a) or (d), or amended under paragraph (1)(b) or (c), following consultation by the federal Minister with the Review Board.

Clause 91: Existing text of subsection 144(1):

144. (1) The Governor in Council may, by regulations made following consultation by the federal Minister with the Review Board, the first nations and the territorial Minister, amend the schedule by adding, or by deleting, the name of any agency, other than a land and water board established by Part 3 or 4, that exercises regulatory powers pursuant to territorial or federal laws and that is not subject to specific control or direction by a minister of the federal or territorial government or the Governor in Council.

Clause 92: Existing text of section 147:

147. (1) A responsible authority that is a minister of the Crown in right of Canada shall carry out the functions referred to in section 146 in consultation with the first nations.

(2) Where a responsible authority is other than a minister of the Crown in right of Canada, the Gwich’in and Sahtu First Nations are entitled to participate in the functions referred to in section 146 in the manner provided by the regulations.

Clause 93: (1) Existing text of subsection 148(2):

(2) The federal Minister shall, after consulting the Gwich’in First Nation, the Sahtu First Nation and the territorial government, fix the terms of reference of an environmental audit, including the key components of the environment to be examined.

(2) Existing text of subsection 148(5):

(5) The Gwich’in and Sahtu First Nations are entitled to participate in an environmental audit in the manner provided by the regulations.

Clause 94: (1) and (2) Relevant portion of section 150:

150. The Governor in Council may, after consultation by the federal Minister with affected first nations and the territorial Minister, make regulations for carrying out the purposes and provisions of this Part and, in particular, regulations

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(c) respecting the manner of participation of the Gwich’in and Sahtu First Nations in the functions of a responsible authority that is not a minister of the Crown or in an environmental audit.