Bill C-47
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First Session, Forty-first Parliament,
60-61-62 Elizabeth II, 2011-2012-2013
STATUTES OF CANADA 2013
CHAPTER 14
CHAPTER 14
An Act to enact the Nunavut Planning and Project Assessment Act and the Northwest Territories Surface Rights Board Act and to make related and consequential amendments to other Acts
ASSENTED TO
19th JUNE, 2013
BILL C-47
RECOMMENDATION
His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to enact the Nunavut Planning and Project Assessment Act and the Northwest Territories Surface Rights Board Act and to make related and consequential amendments to other Acts”.
SUMMARY
Part 1 enacts the Nunavut Planning and Project Assessment Act, which implements certain provisions of Articles 10 to 12 of the land claims agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in right of Canada that was ratified, given effect and declared valid by the Nunavut Land Claims Agreement Act, which came into force on July 9, 1993.
Part 2 enacts the Northwest Territories Surface Rights Board Act, which implements provisions of certain land claim agreements. In particular, that Act establishes the Northwest Territories Surface Rights Board, whose purpose is to resolve matters in dispute relating to terms and conditions of access to lands and waters in the Northwest Territories and the compensation to be paid in respect of that access.
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TABLE OF PROVISIONS
SHORT TITLE
1. Northern Jobs and Growth Act
PART 1
NUNAVUT PLANNING AND PROJECT ASSESSMENT ACT
Enactment of Act
2. Enactment
AN ACT RESPECTING LAND USE PLANNING AND THE ASSESSMENT OF ECOSYSTEMIC AND SOCIO-ECONOMIC IMPACTS OF PROJECTS IN THE NUNAVUT SETTLEMENT AREA AND MAKING CONSEQUENTIAL AMENDMENTS TO OTHER ACTS
Preamble
SHORT TITLE
1. Nunavut Planning and Project Assessment Act
INTERPRETATION
2. Definitions
3. Inconsistency with Agreement
4. Rights preserved
APPLICATION
5. Geographic application
6. Binding on Her Majesty
7. Canadian Environmental Assessment Act, 2012
CONSULTATION
8. Amendments to this Act
DELEGATION
9. Delegation to territorial Minister
PART 1
COMMISSION AND BOARD
Nunavut Planning Commission
Constitution
10. Continuance
11. Members
12. Chairperson
13. Acting after expiry of term
Powers, Duties and Functions
14. Additional powers, duties and functions
15. Principles — section 11.2.1 of Agreement
Meetings
16. Participation by telecommunications
By-laws and Rules
17. Powers
Nunavut Impact Review Board
Constitution
18. Continuance
19. Members
20. Chairperson
21. Acting after expiry of term
Powers, Duties and Functions
22. Additional powers, duties and functions
23. Primary objectives
24. Limitation — socio-economic benefits
Meetings
25. Nunavut Settlement Area
By-laws and Rules
26. Powers
Panels
27. Establishment
General Provisions — Commission and Board
Members
28. Vacancies during term
29. Term of office
30. Oath of office
31. Remuneration and expenses
32. Removal
Staff
33. Employment and remuneration
Conflict of Interest
34. Members
Status and General Powers
35. Status
Head Office
36. Nunavut Settlement Area
Languages
37. Language of business
By-laws and Rules
38. Pre-publication
Financial Provisions
39. Annual budget
PART 2
LAND USE PLANNING
Interpretation
40. Definition of “land”
Policies, Priorities and Objectives
41. Designated area
42. Planning regions
43. Consultations
44. Principles and factors
45. Public hearing
Land Use Plans
General Provisions
46. Duty
47. Purposes of plan
48. Contents of plan
Development
49. Preparation of draft
50. Draft to be made public
51. Public hearing
52. Revision — draft plan
53. Submission — draft plan
54. Decision — draft plan
55. Approval — plan
56. Nunavut Water Board
57. Municipalities
58. Factors to consider
Amendment
59. Proposal for amendment
60. Revision of amendment
61. Submission of proposed amendment
62. Decision — proposed amendment
63. Nunavut Water Board
64. Municipalities
65. Factors to consider
Periodic Review
66. Commission
67. Public hearing
Implementation
68. Duty — general
69. Duty — licences, etc.
Parks and Conservation Areas
70. Existing parks and historic places
Municipalities
71. Municipal plans — development
72. Compatibility of plans
PART 3
ASSESSMENT OF PROJECTS TO BE CARRIED OUT IN THE DESIGNATED AREA
Interpretation
73. Definitions
Compliance
74. Prohibitions
75. Regulatory authorities
Review by Commission
Project Proposal
76. Duty — proponent
Land Use Plan in Effect
Determination
77. Conformity with plan
Project in Conformity with Land Use Plan
78. Verification — screening
79. Project not exempt from screening
80. Project exempt from screening
Project Not in Conformity with Land Use Plan
81. Minor variance
82. Request for ministerial exemption
Time Limit
83. Performance of certain functions
84. Time not counted — additional information
No Land Use Plan
85. Verification — screening
Screening by Board
86. Scope of project
87. Screening
88. Purpose of screening
89. Project to be reviewed
90. Significance of impacts — factors
91. Project to be modified or abandoned
92. Report — Board
93. Board determines review not necessary
94. Board determines review necessary
95. Board determines project be modified or abandoned
96. Particular issues or concerns — Board
97. Particular issues or concerns — panel
98. Location of impacts
Review
Board
99. Scope of project
100. Review
101. Impact statement — guidelines
102. Conduct of review
103. Factors to consider
104. Report — Board
105. Determination to proceed
106. Determination not to proceed
107. Revised report — rejection of conditions
108. Socio-economic terms and conditions
109. Consultation
110. Notification by Minister
111. Project certificate
112. Reconsideration of terms and conditions
113. Location of impacts
114. Priority
Federal Environmental Assessment Panel
115. Establishment
116. Primary objectives
117. Terms of reference
118. Scope of project
119. Review
120. Impact statement — guidelines
121. Public hearing
122. Factors to consider
123. Report — panel
124. Conclusions — Board
125. Determination to proceed
126. Determination not to proceed
127. Report — rejection of conditions
128. Socio-economic terms and conditions
129. Consultation
130. Approval of Governor in Council
131. Notification by Minister
132. Project certificate
133. Location of impacts
Project Terms and Conditions
Compatibility
134. Prescribed standards
Monitoring Programs
135. Impacts of project
Implementation
136. Duty — general
137. Duty — licences, etc.
138. Prevailing terms and conditions
139. Decision of independent regulatory agency
140. Inuit Impact and Benefit Agreements
General Provisions
Modifications to Project During Assessment
141. Notice — proponent
142. Notice — authority assessing project
Requests During Assessment
143. Request — suspension
144. Additional information
Modifications to Project After Assessment
145. Modification not significant
146. Significant modification
Projects Not Carried Out
147. New assessment
Consultations
148. Consultation — Minister
Multiple Responsible Ministers
149. Joint exercise of powers, etc.
Reasons for Decisions
150. Written reasons
Special Cases
National Security
151. Non-application of this Part
Emergency Situations
152. Non-application of this Part
Community Resupply and Ship Movements
153. No screening
Exploration, Developmental or Development Activities
154. Licences — Nunavut Water Board
155. Licences — regulatory authorities
Transboundary Projects
Review by Commission
156. Application — entire project
Screening by Board
157. Application — entire project
Review
Board
158. Scope of project
159. Agreement — coordination
Federal Environmental Assessment Panel or Joint Panel
160. Ministerial decision
161. Federal environmental assessment panel
162. Joint panel
Parks and Conservation Areas
Projects
163. Definition of “responsible authority”
164. Project proposal
165. Conformity with requirements
166. Verification — screening
167. Project not exempt from screening
168. Project exempt from screening
169. Time limit
170. Application of certain provisions
171. Project partly outside park, etc.
172. Projects inside certain conservation areas
Establishment, Abolition and Alteration of Area
Interpretation
173. Ministerial initiative
Proposal
174. Duty — department or agency
Land Use Plan in Effect
175. Conformity with plan
176. Initiative in conformity with plan
177. Initiative not in conformity with plan
178. Request for ministerial exemption
179. Time limit
180. Time not counted — additional information
No Land Use Plan
181. Sending of proposal
Applicable Regime
182. Application of certain provisions
Previous Work
183. Consideration
PART 4
REVIEW OF PROJECTS TO BE CARRIED OUT OUTSIDE THE DESIGNATED AREA
184. Initiative
185. Review by Board
186. Report
187. Follow-up
188. Interpretation
PART 5
GENERAL PROVISIONS
Interpretation
189. Initiative
Standing During Assessment
190. Standing — certain Indian bands
191. Standing — Makivik
Coordination of Activities
192. Commission and Board
193. Nunavut Water Board
194. Similar institutions
195. Agreement — impacts outside designated area
196. Advice regarding marine areas
Information and Documents
Obtaining Information
197. Required information
198. Limitation — restriction on disclosure
Use of Information
199. Limitation — use for exercising powers, etc.
Communication of Information and Documents
200. Decisions and reports — Commission
201. Public registry — Commission
202. Public registry — Board
203. Joint registry
204. Limitation
205. Prevention of unauthorized disclosure
206. Exercise of discretion
Rights Preserved
207. Approval or amendment during assessment
208. Stoppage, etc. — less than five years
Administration and Enforcement
Designation
209. Designation
Powers
210. Authority to enter
211. Warrant for dwelling-house
212. Entering private property
213. Use of force
Orders
214. Measures required
Coordination
215. Activities — designated persons
Injunction
216. Court — powers
Prohibitions, Offences and Punishment
217. Obstruction
218. False statements or information
219. Offence and punishment
Judicial Matters
Court Jurisdiction
220. Judicial review — concurrent jurisdiction
221. Court reference
222. Standing
223. Decisions final
Immunity
224. Things done in good faith
225. Disclosure made in good faith
Time Limits
226. Authority, etc.
General Monitoring
227. Plan
Regulations and Orders
228. Regulations
229. Schedule 2
230. Schedule 3 — proposed agreement
PART 6
TRANSITIONAL PROVISIONS
231. Members and employees
232. Policies, priorities and objectives regarding planning
233. Land use plans
234. Municipal plans
235. Projects — assessment under Agreement
Consequential Amendments
3. Access to Information Act
4. Privacy Act
5-9. Nunavut Waters and Nunavut Surface Rights Tribunal Act
Coming into Force
10. Order in council
PART 2
NORTHWEST TERRITORIES SURFACE RIGHTS BOARD ACT
Enactment of Act
11. Enactment
AN ACT TO ESTABLISH THE NORTHWEST TERRITORIES SURFACE RIGHTS BOARD AND TO MAKE RELATED AND CONSEQUENTIAL AMENDMENTS TO OTHER ACTS
Preamble
SHORT TITLE
1. Northwest Territories Surface Rights Board Act
INTERPRETATION
2. Definitions
PRECEDENCE
3. Agreement prevails
APPLICATION
4. Geographical application
5. Binding on Her Majesty
GENERAL PROVISIONS
6. Delegation
7. Review
8. Access subject to consent
ESTABLISHMENT AND ORGANIZATION OF THE NORTHWEST TERRITORIES SURFACE RIGHTS BOARD
Board Established
9. Establishment
10. Purpose
11. Chairperson
12. Alternate members
13. Qualifications and residency requirements
14. Change of residence
15. Term of office
16. Removal
17. Reappointment
18. Remuneration and expenses — members
19. Staff
20. Workers’ compensation
21. Conflict of interest
22. Acts done in good faith
Head Office and Meetings
23. Head office
24. Meetings
Bylaws
25. Powers of Board
Status and General Powers
26. Status
27. Property and contracts
28. Government services and facilities
29. Obtaining information
Languages
30. Language of business
Financial Provisions
31. Annual budget
Annual Report
32. Submission to Minister and content
APPLICATIONS AND HEARINGS
Jurisdiction of the Board
33. Negotiations
34. Resolved matters
35. Matters not raised
Hearings
36. Rules of evidence
37. General powers of Board
38. Reference
39. Parties to hearing
40. Absence of party
41. Location of hearing
Panels
42. Composition
43. Assignment of members
44. Residency and knowledge requirements
45. Absence of panel members
46. Information made available
47. Powers and functions
ORDERS IN RELATION TO DESIGNATED LAND AND TLICHO LANDS
Access Orders
Required Documents
48. Copy of agreement or offer
Obligation of Board To Make Access Orders
49. Minerals — Gwich’in or Sahtu lands
50. Access across — Gwich’in, Sahtu or Tlicho lands
51. Access across — Inuvialuit lands
52. Travel by water — Gwich’in, Sahtu or Tlicho lands
53. Existing right — Gwich’in or Sahtu lands
54. Existing right — Tlicho lands
Terms and Conditions
55. Terms and conditions agreed to by parties
56. Terms and conditions determined by Board
57. Inconsistent terms and conditions
Compensation
58. Compensation agreed to by parties
59. Compensation determined by Board
60. Manner of payment
Payment Before Exercise of Right of Access
61. Access fee and amount for exercise of right of access
Interim Access Orders
62. If compensation not determined
Other Orders
63. Required documents
64. Public utilities
65. Unforeseen damage
66. Factors to be considered
67. Manner of payment
ORDERS IN RELATION TO NON-DESIGNATED LAND
Access Orders
Required Documents
68. Copy of agreement or offer
Obligation of Board To Make Access Orders
69. Minerals
Terms and Conditions
70. Terms and conditions agreed to by parties
71. Terms and conditions determined by Board
72. Inconsistent terms and conditions
Compensation
73. Compensation agreed to by parties
74. Compensation determined by Board
75. Manner of payment
Payment Before Exercise of Right of Access
76. Amount for exercise of right of access
Interim Access Orders
77. If compensation not determined
Other Orders
78. Required documents
79. Unforeseen damage
80. Factors to be considered
81. Manner of payment
GENERAL
Orders and Decisions of the Board
82. Costs
83. Reasons
84. Final and binding
85. Copies
86. Proof of orders
87. Successors
88. Enforcement of orders
Review of Access Orders
89. Review on application
90. Five-year review
Termination of Access Orders
91. Application by party
92. Application by parties
Jurisdiction of the Supreme Court of the Northwest Territories
93. Exclusive jurisdiction
Rules of the Board
94. Mandatory rules
95. Other rules
96. Statutory Instruments Act
97. Notice of proposed rule
Public Registry
98. Contents
Regulations
99. Regulations
TRANSITIONAL PROVISIONS
100. Request for arbitration already made
101. Inuvialuit Agreement
Related Amendments to the Yukon Surface Rights Board Act
12-16. Amendments
Consequential Amendments
17. Access to Information Act
18. Canada Oil and Gas Operations Act
19. Privacy Act
Coming into Force
20. Coming into force
SCHEDULE
60-61-62 ELIZABETH II
——————
CHAPTER 14
An Act to enact the Nunavut Planning and Project Assessment Act and the Northwest Territories Surface Rights Board Act and to make related and consequential amendments to other Acts
[Assented to 19th June, 2013]
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 Northern Jobs and Growth Act.
PART 1
NUNAVUT PLANNING AND PROJECT ASSESSMENT ACT
Enactment of Act
Enactment
2. The Nunavut Planning and Project Assessment Act, whose Schedules 1 to 3 are set out in the schedule to this Act, is enacted as follows:
An Act respecting land use planning and the assessment of ecosystemic and socio-economic impacts of projects in the Nunavut Settlement Area and making consequential amendments to other Acts
Preamble
Whereas Her Majesty the Queen in right of Canada and the Inuit of the Nunavut Settlement Area have entered into a land claims agreement that came into force on July 9, 1993 on its ratification by both parties;
And whereas the Nunavut Planning Commission and the Nunavut Impact Review Board were established under that agreement, which provides that the substantive powers, functions, duties and objectives of those institutions of public government must be set out in statute;
And whereas it is desirable to set out a regime for land use planning and project assessment that recognizes the importance of responsible economic development and conservation and protection of the ecosystems and that encourages the well-being and self-reliance of the Inuit and other residents of the designated area, taking into account the interests of all Canadians;
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 Nunavut Planning and Project Assessment Act.
INTERPRETATION
Definitions
2. (1) The following definitions apply in this Act.
“Agreement”
« accord »
« accord »
“Agreement” means the land claims agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in right of Canada that was ratified, given effect and declared valid by the Nunavut Land Claims Agreement Act, which came into force on July 9, 1993, and includes any amendments to that agreement made under it.
“Board”
Version anglaise seulement
Version anglaise seulement
“Board” means the Nunavut Impact Review Board referred to in section 18.
“Commission”
Version anglaise seulement
Version anglaise seulement
“Commission” means the Nunavut Planning Commission referred to in section 10.
“conservation area”
« aire de préservation »
« aire de préservation »
“conservation area” means an area listed in Schedule 9-1 to the Agreement and any of the following:
(a) a wildlife area established under the Canada Wildlife Act;
(b) a critical habitat, wildlife sanctuary or special management area, as defined in section 2 of the Wildlife Act, S.Nu. 2003, c. 26;
(c) a migratory bird sanctuary prescribed under the Migratory Birds Convention Act, 1994;
(d) a wetland of international importance, as defined in Article 2 of the Convention on Wetlands of International Importance especially as Waterfowl Habitat, concluded at Ramsar on February 2, 1971 and in force in Canada on May 15, 1981, that is designated by the Government of Canada;
(e) a marine protected area designated under paragraph 35(3)(a) of the Oceans Act;
(f) a protected marine area established under subsection 4.1(1) of the Canada Wildlife Act;
(g) a Canadian heritage river referred to in paragraph 4(1)(b) of the Parks Canada Agency Act;
(h) a historic place designated under the Historic Sites and Monuments Act;
(i) a historic place designated under the Historical Resources Act, R.S.N.W.T. 1988, c. H-3; and
(j) any other area of particular significance for ecological, cultural, archaeological, research or similar reasons, if established under an Act of Parliament or territorial law.
“department or agency”
« ministère ou organisme »
« ministère ou organisme »
“department or agency” means
(a) a department, agency or other portion of the federal public administration; and
(b) a department, agency or other division of the public service of Nunavut.
“designated area”
« région désignée »
« région désignée »
“designated area” means the area that consists of the Nunavut Settlement Area and the Outer Land Fast Ice Zone.
“designated Inuit organization”
« organisation inuite désignée »
« organisation inuite désignée »
“designated Inuit organization” means
(a) Tunngavik or, in respect of a provision of this Act, the organization designated in the public record, which is maintained by Tunngavik under the Agreement, as being responsible for the exercise of any power or the performance of any duty or function under the corresponding provision of the Agreement; or
(b) in respect of Inuit owned lands in the areas of equal use and occupancy, Makivik acting jointly with the organization determined under paragraph (a).
“federal Minister”
« ministre fédéral »
« ministre fédéral »
“federal Minister” means, other than in the definition “proponent” in this subsection, section 68, the definition “responsible Minister” in subsection 73(1), subsections 135(5), 136(1) and 149(2), paragraph 152(1)(b), section 173 and subsection 189(1), the Minister of Indian Affairs and Northern Development.
“interested corporation or organization”
« intéressée »
« intéressée »
“interested corporation or organization” means, for the purposes of section 43 and subsections 50(2), 101(4) and 120(5), a corporation or other organization that has given written notice to the Commission, the Board or any federal environmental assessment panel, as the case may be, of its interest in providing comments.
“Inuit of northern Quebec”
« Inuits du Nord québécois »
« Inuits du Nord québécois »
“Inuit of northern Quebec” means the Inuit of northern Quebec within the meaning of the James Bay and Northern Quebec Agreement that was approved, given effect and declared valid by the James Bay and Northern Quebec Native Claims Settlement Act, S.C. 1976-77, c. 32.
“Inuktitut”
« inuktitut »
« inuktitut »
“Inuktitut” includes Inuinnaqtun.
“land”
« terres »
« terres »
“land” includes, for the purposes of Parts 1 and 3 to 6, land covered by waters, whether in the onshore or offshore.
“land use plan”
« plan d’aménagement »
« plan d’aménagement »
“land use plan” does not include a municipal land use plan.
“Makivik”
« Makivik »
« Makivik »
“Makivik” means the Corporation established by An Act respecting the Makivik Corporation, R.S.Q., c. S-18.1, representing the Inuit of northern Quebec.
“marine conservation area”
« aire marine de préservation »
« aire marine de préservation »
“marine conservation area” means a marine conservation area or reserve as defined in subsection 2(1) of the Canada National Marine Conservation Areas Act.
“municipality”
« municipalité »
« municipalité »
“municipality” means a municipality or settlement as defined in subsection 28(1) of the Interpretation Act, R.S.N.W.T. 1988, c. I-8, as amended for Nunavut under section 76.05 of the Nunavut Act.
“national park”
« parc national »
« parc national »
“national park” means a park or park reserve as defined in subsection 2(1) of the Canada National Parks Act.
“park”
« parc »
« parc »
“park” means a national park, a territorial park or a marine conservation area.
“project”
« projet »
« projet »
“project” means the carrying out, including the construction, operation, modification, decommissioning or abandonment, of a physical work or the undertaking or carrying out of a physical activity that involves the use of land, waters or other resources. It does not include
(a) the undertaking or carrying out of a work or activity if its adverse ecosystemic impacts are manifestly insignificant, taking into account in particular the factors set out in paragraphs 90(a) to (i);
(b) the undertaking or carrying out of a work or activity that is part of a class of works or activities prescribed by regulation; or
(c) the construction, operation or maintenance of a building or the provision of a service, within a municipality, that does not have ecosystemic impacts outside the munic- ipality and does not involve the deposit of waste by a municipality, the bulk storage of fuel, the production of nuclear or hydro-electric power or any industrial activities.
“proponent”
« promoteur »
« promoteur »
“proponent” means a person or entity, including a federal, provincial or territorial minister, department or agency, a municipality or a designated Inuit organization, that proposes the carrying out of a project.
“regulatory authority”
« autorité administrative »
« autorité administrative »
“regulatory authority” means a minister — other than for the purposes of section 197 —, a department or agency, a municipality or any other public body responsible for issuing a licence, permit or other authorization required by or under any other Act of Parliament or a territorial law for a project to proceed.
“territorial law”
« loi territoriale »
« loi territoriale »
“territorial law” means an Act of the Legislature for Nunavut.
“territorial Minister”
« ministre territorial »
« ministre territorial »
“territorial Minister” means, other than in the definition “proponent” in this subsection, paragraph 19(2)(d), section 68, the definition “responsible Minister” in subsection 73(1), subsections 94(5), 135(5), 136(1) and 149(2), paragraph 152(1)(b), section 173, subsection 189(1) and paragraph 200(2)(c), the Minister of Environment for Nunavut.
“Tunngavik”
« Tunngavik »
« Tunngavik »
“Tunngavik” means Nunavut Tunngavik Incorporated, a corporation without share capital incorporated under Part II of the Canada Corporations Act, R.S.C. 1970, c. C-32, and any successor to that corporation.
“waters”
« eaux »
« eaux »
“waters” means inland waters on or below the surface of land and marine waters, whether in a liquid or solid state.
Definitions from Agreement
(2) In this Act
(a) “ecosystemic” has the same meaning as in section 12.1.1 of the Agreement;
(b) “Inuit owned lands”, “marine areas”, “Nunavut Settlement Area”, “Outer Land Fast Ice Zone”, “territorial park” and “wildlife” have the same meaning as in section 1.1.1 of the Agreement; and
(c) “areas of equal use and occupancy” has the same meaning as in section 40.2.2 of the Agreement.
Interpretation
(3) For greater certainty, in this Act the issuance of a licence, permit or other authorization, includes a renewal, an amendment or an extension of its period of validity.
Inconsistency with Agreement
3. (1) In the event of any inconsistency or conflict between the Agreement and this Act or any regulation made under it, the Agreement prevails to the extent of the inconsistency or conflict.
Inconsistency with other Acts
(2) In the event of any inconsistency or conflict between this Act or any regulation made under it and any other Act of Parliament, except the Nunavut Land Claims Agreement Act, or any territorial law or any regulation made under that Act or that territorial law, this Act or its regulations prevail to the extent of the inconsistency or conflict.
Limitation — orders
(3) In the event of any inconsistency or conflict between an order made under section 214 and an order made by any person designated for the purposes of the administration and enforcement of any other Act of Parliament, any requirement imposed on the carrying out of a project by that Act or a term or condition in any licence, permit or other authorization issued under that Act, the order made under section 214 does not prevail over the other order, the requirement or the term or condition for the sole reason that the provisions of this Act prevail over any inconsistent provisions of any other Act of Parliament.
Rights preserved
4. For greater certainty, nothing in this Act or its regulations, or in an original or amended project certificate or in any decision indicating that the assessment of a project is complete and that the proponent may carry it out constitutes a defence to a claim for loss or damage sustained by any person by reason of the carrying out of a project.
APPLICATION
Geographic application
5. (1) This Act applies to the designated area.
Application outside designated area
(2) This Act also applies to projects to be carried out wholly or partly outside the designated area and to impacts outside that area to the extent necessary to give effect to sections 80, 98, 113, 133, 156 to 162, 168 and 185 to 187.
Binding on Her Majesty
6. This Act is binding on Her Majesty in right of Canada or a province.
Canadian Environmental Assessment Act, 2012
7. The Canadian Environmental Assessment Act, 2012 does not apply in respect of the designated area.
CONSULTATION
Amendments to this Act
8. The federal Minister must consult closely with the territorial Minister, the designated Inuit organization, the Commission and the Board with respect to any amendment to this Act.
DELEGATION
Delegation to territorial Minister
9. (1) The federal Minister may delegate, in writing, to the territorial Minister any of the federal Minister’s powers, duties or functions under this Act, either generally or as otherwise provided in the instrument of delegation. However, the delegation must not abrogate or derogate from any Inuit rights under the Agreement.
Notice
(2) The federal Minister must notify the designated Inuit organization in writing of any delegation made under subsection (1).
PART 1
COMMISSION AND BOARD
Nunavut Planning Commission
Constitution
Continuance
10. The Nunavut Planning Commission, established under the Agreement, is continued under this Act.
Members
11. (1) The federal Minister must appoint the members of the Commission, including the Chairperson.
Composition
(2) The following rules apply in respect of the appointment of members of the Commission, other than the Chairperson:
(a) at least one member must be appointed on the nomination of the federal Minister;
(b) at least one member must be appointed on the nomination of the territorial Minister; and
(c) one half of the members must be appointed on the nomination of the organization referred to in paragraph (a) of the definition “designated Inuit organization” in subsection 2(1).
Substitution
(3) The organization referred to in paragraph (a) of the definition “designated Inuit organization” in subsection 2(1) may, for the purpose of ensuring appropriate representation from any planning region in the preparation or amendment of a land use plan, nominate one or more persons to act in the place of an equivalent number of members appointed under paragraph (2)(c). The person or persons appointed by the federal Minister on the nomination of that organization act in the place of the member or members identified by the organization.
Areas of equal use and occupancy
(4) If the Commission is called on to make a decision under Part 3 in respect of a project to be carried out in an area of equal use and occupancy, Makivik may nominate a number of persons equal to one half the number of members appointed under paragraph (2)(c). The person or persons appointed by the federal Minister on the nomination of Makivik act in the place of an equivalent number of members appointed under paragraph (2)(c) and identified by the organization referred to in paragraph (a) of the definition “designated Inuit organization” in subsection 2(1).
Residence requirement
(5) At least one half of the members appointed under subsection (2) must reside in the designated area.
Persons not eligible for appointment
(6) Employees of a department or agency are not eligible to be members of the Commission.
Chairperson
12. (1) After consultation with the territorial Minister, the Chairperson of the Commission is to be appointed from among the persons who are nominated by the Commission.
Appointment of another member
(2) If a member of the Commission is appointed Chairperson, the federal Minister must appoint another person to be a member of the Commission in accordance with section 11.
Acting after expiry of term
13. If a Commission member’s term expires before the review of a project by the Commission is complete, the member continues to act as a member in relation to that project until that review is complete. The Chairperson of the Commission must notify the federal Minister in writing of any member acting under this section.
Powers, Duties and Functions
Additional powers, duties and functions
14. In addition to its powers, duties and functions specified elsewhere in this Act, the Commission must
(a) monitor projects approved under Part 3 to verify that they are carried out in conformity with any applicable land use plan;
(b) report annually in writing to the federal Minister, the territorial Minister and the designated Inuit organization on the implementation of the land use plan;
(c) contribute to the development and review of marine policy in the Arctic;
(d) exercise the powers and perform the duties and functions referred to in section 11.9.1 of the Agreement in relation to the cleanup of waste sites; and
(e) exercise any powers and perform any duties and functions that may be agreed on by the Government of Canada or the Government of Nunavut, or both, taking into account their respective jurisdictions, and the designated Inuit organization.
Principles — section 11.2.1 of Agreement
15. The Commission must exercise its powers and perform its duties and functions with a view to fulfilling the objectives of the Agreement in relation to land use planning in accordance with the principles referred to in section 11.2.1 of the Agreement.
Meetings
Participation by telecommunications
16. Subject to the Commission’s by-laws and rules, a member of the Commission may participate in a meeting by means of telephone or other communications facilities that are likely to enable all persons participating in the meeting to hear each other, and a member so participating is deemed for all purposes of this Act to be present at that meeting.
By-laws and Rules
Powers
17. (1) The Commission may make by-laws and rules respecting the conduct and management of its business, including by-laws and rules respecting
(a) the calling of its meetings and sittings and the conduct of business at them;
(b) the establishment of technical panels;
(c) procedures for making submissions and complaints to the Commission;
(d) procedures for collecting information and opinions, including procedures for conducting formal and informal public hearings and public reviews;
(e) the form and content of descriptions to be submitted with respect to projects; and
(f) the admissibility of evidence.
Inuit traditions
(2) A by-law or rule made under paragraph (1)(d) must give due regard and weight to the Inuit traditions regarding oral communication and decision-making.
Statutory Instruments Act
(3) By-laws and rules made under this section are not statutory instruments for the purposes of the Statutory Instruments Act.
Nunavut Impact Review Board
Constitution
Continuance
18. The Nunavut Impact Review Board, established under the Agreement, is continued under this Act.
Members
19. (1) The Board consists of nine members, including the Chairperson.
Composition
(2) The members of the Board, other than the Chairperson, must be appointed as follows:
(a) two members must be appointed by the federal Minister;
(b) four members must be appointed by the federal Minister on the nomination of the organization referred to in paragraph (a) of the definition “designated Inuit organization” in subsection 2(1);
(c) one member must be appointed by the territorial Minister; and
(d) one member must be appointed by one or more territorial ministers.
Additional members
(3) Despite subsection (1), additional members may be appointed for a specific purpose in the manner and in the proportions set out in subsection (2).
Areas of equal use and occupancy
(4) If the Board is called on to make a decision under Part 3 in respect of a project to be carried out in an area of equal use and occupancy, Makivik may nominate a number of persons equal to one half the number of members appointed under paragraph (2)(b). The person or persons appointed by the federal Minister on the nomination of Makivik act in the place of an equivalent number of members appointed under paragraph (2)(b) and identified by the organization referred to in paragraph (a) of the definition “designated Inuit organization” in subsection 2(1).
Chairperson
20. (1) After consulting with the territorial Minister, the federal Minister must appoint a Chairperson of the Board from among the persons nominated by the other members of the Board. If there are equally qualified nominees, the federal Minister must give preference to the nominees who reside in the designated area.
Appointment of another member
(2) If a member of the Board, appointed under any of paragraphs 19(2)(a) to (d), is appointed Chairperson, the minister who appointed that member must appoint another person to be a member of the Board under that paragraph.
Acting after expiry of term
21. If a Board member’s term expires before the screening or review of a project by the Board is complete, the member continues to act as a member in relation to that project until the screening or review is complete. The Chairperson of the Board must notify the federal Minister in writing of any member acting under this section.
Powers, Duties and Functions
Additional powers, duties and functions
22. In addition to its powers, duties and functions specified elsewhere in this Act, the Board must exercise any powers and perform any duties and functions that may be agreed on by the Government of Canada or the Government of Nunavut, or both, taking into account their respective jurisdictions, and the designated Inuit organization.
Primary objectives
23. (1) The Board must exercise its powers and perform its duties and functions in accord- ance with the following primary objectives:
(a) to protect and promote the existing and future well-being of the residents and communities of the designated area; and
(b) to protect the ecosystemic integrity of the designated area.
Other residents
(2) In exercising its powers or performing its duties and functions in accordance with the objective set out in paragraph (1)(a), the Board must take into account the well-being of residents of Canada outside the designated area.
Interpretation
(3) For greater certainty, the Board must exercise its powers and perform its duties and functions under paragraphs 92(2)(a), 104(1)(c) and 112(5)(b), section 124 and subsection 152(4) in accordance with the objectives set out in subsection (1).
Limitation — socio-economic benefits
24. The Board is not authorized to establish, in the exercise of its powers or the performance of its duties and functions, requirements relating to socio-economic benefits.
Meetings
Nunavut Settlement Area
25. (1) The Board must, whenever practi- cable, hold its meetings within the Nunavut Settlement Area.
Participation by telecommunications
(2) A member of the Board may, subject to the Board’s by-laws and rules, participate in a meeting by means of telephone or other communications facilities that are likely to enable all persons participating in the meeting to hear each other, and a member so participating is deemed for all purposes of this Act to be present at that meeting.
Request by members for meeting
(3) The Chairperson must call a meeting of the Board within 21 days after receiving a written request for a meeting, indicating its purpose, from at least five members.
Voting
(4) Decisions of the Board must be made by a majority of votes, with each member, other than the Chairperson, having one vote. In the case of a tie vote, the Chairperson must cast the deciding vote.
Quorum
(5) Five members of the Board constitute a quorum.
By-laws and Rules
Powers
26. (1) The Board may make by-laws and rules respecting the conduct and management of its business, including by-laws and rules respecting
(a) the calling of meetings of the Board and the conduct of business at them;
(b) the establishment of special and standing committees and the fixing of quorum for meetings of those committees;
(c) procedures for making submissions and complaints to the Board;
(d) procedures and guidelines for collecting information and opinions, including procedures for the conduct of public hearings by the Board or one of its panels;
(e) the establishment of guidelines for the preparation of impact statements;
(f) the establishment of guidelines respecting time limits for completing each step of a review that the Board carries out under Part 3 or 4; and
(g) the admissibility of evidence in public hearings conducted by the Board or one of its panels.
Inuit traditions
(2) A by-law or rule made under paragraph (1)(d) must give due regard and weight to the Inuit traditions regarding oral communication and decision making.
Public hearings
(3) By-laws and rules relating to the conduct of public hearings must
(a) emphasize flexibility and informality to the extent that is consistent with the general application of the rules of procedural fairness and natural justice and in particular must allow, if appropriate, the admission of evidence that would not normally be admissible under the strict rules of evidence; and
(b) with respect to any classification of intervenors, allow a designated Inuit organization full standing to appear at a public hearing for the purpose of making submissions on behalf of the people it represents.
Statutory Instruments Act
(4) By-laws and rules made under this section are not statutory instruments for the purposes of the Statutory Instruments Act.
Panels
Establishment
27. (1) The Board may establish panels and delegate any of its powers, duties and functions to them.
Chairperson
(2) The Board must appoint a Chairperson for each panel.
Composition
(3) In addition to the Chairperson, each panel must consist of an even number of members half of whom must be members appointed under paragraph 19(2)(a), (c) or (d) and half of whom must be members appointed under paragraph 19(2)(b).
General Provisions — Commission and Board
Members
Vacancies during term
28. If a vacancy occurs during the term of a member of the Commission or the Board, other than a member appointed under subsection 19(3), the minister who appointed the member must appoint another member as soon as practicable in accordance with section 11 or 19, as the case may be.
Term of office
29. (1) Members of the Commission and the Board, including the Chairpersons and any member appointed under section 28, are appointed to hold office for a term of three years.
Other members
(2) Despite subsection (1), members appointed under subsection 11(3) or (4) or 19(3) or (4) are appointed to hold office for a term not exceeding three years.
Reappointment
(3) A member is eligible to be reappointed to the Commission or the Board in the same or another capacity.
Oath of office
30. Before taking up their duties, members of the Commission and the Board must take the oath of office set out in Schedule 1 before a person who is authorized by law to administer oaths.
Remuneration and expenses
31. (1) The members of the Commission and the Board must receive fair remuneration, as determined by the federal Minister, for the performance of their duties and must be paid any travel and living expenses that are incurred while absent from their ordinary place of residence in the course of performing their duties and that are consistent with Treasury Board directives for public servants.
Workers’ compensation
(2) A member is deemed to be an employee for the purposes of the Government Employees Compensation Act and to be employed in the federal public administration for the purposes of any regulations made under section 9 of the Aeronautics Act.
Removal
32. A member of the Commission or the Board may be removed for cause by the minister who appointed the member. If the member was nominated by the designated Inuit organization or the territorial Minister, the federal Minister may remove the member only after consulting the designated Inuit organization or the territorial minister, as the case may be.
Staff
Employment and remuneration
33. (1) The Commission and the Board may employ any officers and employees and engage the services of any agents, advisers and experts that are necessary for the proper conduct of the business of the Commission or the Board and may fix the terms and conditions of their employment or engagement and pay their remuneration.
Workers’ compensation
(2) An officer or employee of the Commission or the Board is deemed to be an employee for the purposes of the Government Employees Compensation Act and to be employed in the federal public administration for the purposes of any regulations made under section 9 of the Aeronautics Act.
Conflict of Interest
Members
34. (1) A member of the Commission or the Board must not participate in a decision on a matter in which that member has a conflict of interest.
Staff
(2) An officer or employee of the Commission or the Board or agent, adviser or expert must not act in a matter in which that person has a conflict of interest.
Status of Inuk
(3) A member referred to in subsection (1) or a person referred to in subsection (2) is not placed in a conflict of interest solely because that member or person is an Inuk as defined in section 1.1.1 of the Agreement.
Guidelines
(4) Subject to any regulations made under paragraph 228(1)(a) and any rules established by the Treasury Board, the Commission and the Board may issue guidelines regarding conflicts of interest in respect of their members or persons referred to in subsection (2).
Status and General Powers
Status
35. (1) The Commission and the Board are institutions of public government.
Property and contracts
(2) The Commission and the Board may, for the purposes of conducting their business,
(a) acquire property in their own names and dispose of the property; and
(b) enter into contracts in their own names.
Legal proceedings
(3) Actions, suits or other legal proceedings in respect of any right or obligation acquired or incurred by the Commission or the Board may be brought or taken by or against the Commission or the Board in its name in any court that would have jurisdiction if the Commission or the Board were a corporation.
Head Office
Nunavut Settlement Area
36. The head offices of the Commission and the Board must be in the Nunavut Settlement Area.
Languages
Language of business
37. (1) The Commission and the Board must conduct their business in both of the official languages of Canada in accordance with the Official Languages Act and any directives of the federal Minister and, on request by a member, in Inuktitut.
Public hearings and reviews
(2) The Commission and the Board must conduct public hearings, and the Commission must conduct public reviews, in both of the official languages of Canada in accordance with the Official Languages Act and any directives of the federal Minister and, on request by a member, a proponent or an intervenor, in Inuktitut.
Members
(3) Nothing in subsection (1) or (2) is to be construed as preventing the use of translation or interpretation services if a member is otherwise unable to conduct business in either official language or in Inuktitut.
Witnesses
(4) The Commission or the Board has, in any proceedings before it, the duty to ensure that any witness giving evidence before it may be heard in either official language or in Inuktitut and that, in being so heard, the witness will not be placed at a disadvantage by not being heard in another of those languages.
By-laws and Rules
Pre-publication
38. (1) The Commission or the Board must give notice at least 60 days before the making of a by-law or rule by
(a) publishing the proposed by-law or rule on its website;
(b) publishing a notice in a newspaper or other periodical that, in its opinion, has a large circulation in the designated area indicating the time and manner in which the proposed by-law or rule may be examined; and
(c) sending the proposed by-law or rule to the federal Minister, the territorial Minister, the designated Inuit organization and the council of each municipality in the designated area.
Comments invited
(2) The notice referred to in paragraph (1)(b) must include an invitation to interested persons, including corporations and other organizations, to make comments in writing to the Commission or the Board about the proposed by-law or rule within 60 days after publication of the notice.
Response to comments
(3) The Commission or the Board may only make the by-law or rule if it has responded to any comments made within the time limit set out in subsection (2).
Exception
(4) Once a notice is published under subsection (1), the Commission or the Board is not required to publish any further notice about any amendment to the proposed by-law or rule that results from comments made by interested persons.
Notice
(5) As soon as practicable after the by-law or rule has been made, the Commission or the Board must publish a notice that the by-law or rule has been made and is included in the public registry referred to in section 201 or 202, as the case may be, on its website, in the Canada Gazette and in a newspaper or other periodical that, in its opinion, has a large circulation in the designated area.
Financial Provisions
Annual budget
39. (1) The Commission and the Board must each submit, annually, a budget for the following fiscal year to the federal Minister for review and approval.
Accounts
(2) The Commission and the Board must maintain books of account, and records in relation to them, in accordance with accounting principles recommended by the Canadian Institute of Chartered Accountants or its successor.
Consolidated financial statements
(3) The Commission and the Board must, within the time after the end of each fiscal year specified by the federal Minister, each prepare consolidated financial statements in respect of that fiscal year in accordance with the accounting principles referred to in subsection (2) and must include in the consolidated financial statements any documents or information that are required in support of them.
Audit
(4) The accounts, financial statements and financial transactions of the Commission and the Board must be audited annually by the auditor of the Commission or the Board, as the case may be, and, on request by the federal Minister, the Auditor General of Canada. The auditor and, if applicable, the Auditor General of Canada must make a written report of the audit to the Commission or the Board and to the federal Minister.
PART 2
LAND USE PLANNING
Interpretation
Definition of “land”
40. In this Part, “land” includes land covered by water, whether in the onshore or offshore, waters and resources, including wildlife.
Policies, Priorities and Objectives
Designated area
41. The Commission is responsible for the establishment, in conjunction with the Government of Canada or the Government of Nunavut, or both, taking into account their respective jurisdictions, of broad planning policies, prior- ities and objectives for the designated area regarding the conservation, development, management and use of land.
Planning regions
42. (1) The Commission must identify planning regions and may, for each planning region, identify specific planning objectives and planning variables regarding the conservation, development, management and use of land.
Consistency
(2) The specific planning objectives must be consistent with the broad objectives established for the designated area.
Consultations
43. The Commission must seek the opinions of affected municipalities, interested corporations and organizations, residents and other interested persons regarding specific objectives and land use planning options for the region.
Principles and factors
44. The principles and factors set out in sections 11.2.1 and 11.2.3 of the Agreement must guide the development of broad policies, priorities and objectives under section 41 and specific planning objectives under section 42.
Public hearing
45. The Commission may, in exercising its powers and performing its duties and functions under sections 41 to 43, hold a public hearing in accordance with the by-laws and rules made under section 17.
Land Use Plans
General Provisions
Duty
46. (1) The Commission must exercise its powers and perform its duties and functions in relation to land use plan development under this Part so that the entire designated area is, as soon as practicable, subject to either
(a) one land use plan for the entire designated area; or
(b) two or more land use plans, each relating to one or more planning regions within the designated area.
No overlap
(2) For greater certainty, no portion of the designated area is to be subject to more than one land use plan.
Merger of plans
(3) The Commission may merge the land use plans referred to in paragraph (1)(b) to form a land use plan referred to in paragraph (1)(a). If the substance of the land use plans being merged is not changed, such a merger is not an amendment and sections 59 to 65 do not apply.
Purposes of plan
47. A land use plan has the following purposes:
(a) to protect and promote the existing and future well-being of the residents and communities of the designated area, taking into account the interests of all Canadians; and
(b) to protect and, if necessary, restore the environmental integrity of the designated area or the planning region, as the case may be.
Contents of plan
48. (1) A land use plan must provide for the conservation and use of land and guide and direct resource use and development and must, in particular, provide for a strategy regarding the implementation of the plan and take into account
(a) the broad planning policies, priorities and objectives established for the designated area;
(b) the specific planning objectives and planning variables identified for any appli- cable planning region;
(c) the factors referred to in section 11.3.1 of the Agreement; and
(d) Inuit objectives for Inuit owned lands.
Permitted uses
(2) A land use plan may contain descriptions of permitted, subject to any terms and conditions that the plan sets out, and prohibited uses of land.
Minor variances
(3) A land use plan may authorize the Commission to grant minor variances and may set out the conditions subject to which they may be considered and granted.
Offences
(4) A land use plan must identify each requirement set out in that plan whose contravention is prohibited under paragraph 74(f).
Articles 5 and 7 of Agreement
(5) A land use plan must be developed and implemented in a manner that is consistent with the principles and requirements of Articles 5 and 7 of the Agreement.
Development
Preparation of draft
49. After concluding any consultations that it considers appropriate, the Commission must prepare a draft land use plan for the entire designated area or for one or more planning regions.
Draft to be made public
50. (1) Before holding a public hearing in respect of a draft land use plan, the Commission must make the draft public and must do so in a manner designed to promote participation in its examination by the public.
Invitation to comment
(2) The Commission must solicit written and oral comments on the draft land use plan from appropriate departments or agencies, appropriate designated Inuit organizations, affected municipalities, interested corporations and organizations, Inuit and other residents of the designated area and the general public.
Public hearing
51. (1) After allowing a reasonable period for the submission of comments on the draft land use plan, the Commission must hold a public hearing in respect of it.
Duty
(2) The Commission must take all necessary steps to promote public awareness of, and public participation in, the public hearing, including through the choice of the date, time and place of the hearing, notice given in relation to them and measures taken to disseminate any relevant information.
Conduct of hearing
(3) In conducting a public hearing, the Commission must give great weight to the Inuit traditions regarding oral communication and decision-making and must accord to the designated Inuit organization full standing to appear at a public hearing for the purpose of making submissions on behalf of the people it represents.
Revision — draft plan
52. After the public hearing is held, the Commission must consider any comments made in respect of the draft land use plan under subsection 50(2) or submissions made during the hearing and make any revisions to the draft land use plan that it considers appropriate.
Submission — draft plan
53. The Commission must submit the original or revised draft land use plan, which it must make public, and a written report of the proceedings at the public hearing held in respect of it, to the federal Minister, the territorial Minister and the designated Inuit organization.
Decision — draft plan
54. (1) As soon as practicable after receiving a draft land use plan, the federal Minister, the territorial Minister and the designated Inuit organization must accept it jointly or reject it with written reasons and return it to the Commission.
Revised plan
(2) If the plan is rejected by the federal Minister, the territorial Minister or the designated Inuit organization, the Commission must, after considering the reasons, which it may make public, undertake once again any meas- ures in relation to the holding of a public hearing under sections 50 to 52 that it considers necessary, make any changes that it considers appropriate and submit a revised draft land use plan to the Ministers and the designated Inuit organization.
Decision — revised plan
(3) As soon as practicable after receiving a revised draft land use plan, the federal Minister, the territorial Minister and the designated Inuit organization must accept it jointly or reject it with written reasons.
Acceptance and recommendation
(4) After an original or revised draft land use plan is accepted under subsection (1) or (3), the federal Minister must recommend its approval to the Governor in Council and the territorial Minister must recommend its approval to the Executive Council of Nunavut.
Approval — plan
55. (1) The Governor in Council and the Executive Council of Nunavut may approve the draft land use plan if its approval was recommended under subsection 54(4).
Effective date
(2) A land use plan comes into effect when it is approved under subsection (1).
Publication
(3) The Commission must make the land use plan public.
Statutory Instruments Act
(4) Land use plans are not statutory instruments for the purposes of the Statutory Instruments Act.
Nunavut Water Board
56. The Commission must, in exercising its powers and performing its duties and functions under sections 49 and 52 and subsection 54(2), consult with the Nunavut Water Board and take into account any recommendations provided by that Board under subsection 36(1) of the Nunavut Waters and Nunavut Surface Rights Tribunal Act.
Municipalities
57. The Commission must, in exercising its powers and performing its duties and functions under sections 49 and 52 and subsection 54(2), give great weight to the views and wishes of the municipalities in the area to which the draft land use plan relates.
Factors to consider
58. In exercising their powers and performing their duties and functions under sections 49 and 52 and subsections 54(1) to (3), the Commission, the federal Minister, the territorial Minister and the designated Inuit organization must take into account all relevant factors, including the purposes set out in section 47, the requirements set out in section 48 and existing rights and interests.
Amendment
Proposal for amendment
59. (1) The federal Minister, the territorial Minister, the designated Inuit organization or any person, including a corporation or other organization, affected by a land use plan may propose to the Commission an amendment to that plan.
Consideration by Commission
(2) The Commission must consider the proposed amendment and, if it considers it appropriate to do so, conduct a public review in accordance with the by-laws and rules made under section 17.
Amendment proposed by Commission
(3) The Commission may, on its own initiative, propose an amendment to a land use plan and must subsequently conduct a public review in accordance with the by-laws and rules made under section 17.
Proposed amendment to be made public
(4) If the Commission conducts a public review in respect of a proposed amendment, the Commission must make the proposal public in a manner that is designed to promote public participation in its examination.
Revision of amendment
60. The Commission must consider the submissions made during a public review in respect of a proposed amendment and may make any revisions to the proposed amendment that it considers appropriate.
Submission of proposed amendment
61. (1) The Commission must submit the original or revised proposed amendment to the federal Minister, the territorial Minister and the designated Inuit organization with a written report of any public review and its recommendation as to whether the amendment should be accepted or rejected, in whole or in part.
Exception
(2) Despite subsection (1), the Commission may, following public review, withdraw a proposed amendment that it initiated.
Decision — proposed amendment
62. (1) As soon as practicable after receiving the proposed amendment, the federal Minister, territorial Minister and designated Inuit organization must accept the Commission’s recommendation jointly or reject it, in whole or in part, with written reasons.
Revised proposal
(2) If the Commission’s recommendation is rejected, in whole or in part, by the federal Minister, the territorial Minister or the designated Inuit organization, the Commission must, after considering the reasons, which it may make public, undertake once again any measures in relation to the holding of a public review under subsections 59(2) and (4) and section 60 that it considers necessary, make any changes it considers appropriate and submit a revised proposed amendment to the federal Minister, territorial Minister and designated Inuit organization.
Decision — revised proposal
(3) As soon as practicable after receiving a revised proposed amendment, the federal Minister, territorial Minister and designated Inuit organization must accept it jointly or reject it with written reasons.
Coming into force
(4) Any amendment to a land use plan based on an original or revised proposal for amendment comes into force when it is approved under subsection (1) or (3).
Publication
(5) The Commission must make any amendment to a land use plan public.
Nunavut Water Board
63. The Commission must, in exercising its powers and performing its duties and functions under section 60 and subsection 62(2), consult with the Nunavut Water Board and take into account any recommendations provided by that Board under subsection 36(1) of the Nunavut Waters and Nunavut Surface Rights Tribunal Act.
Municipalities
64. The Commission must, in exercising its powers and performing its duties and functions under section 60 and subsection 62(2), give great weight to the views and wishes of the municipalities in the area to which the proposed amendment relates.
Factors to consider
65. In exercising their powers and performing their duties and functions under subsections 59(2) and (3), section 60 and subsections 62(1) to (3), the Commission, the federal Minister, the territorial Minister and the designated Inuit organization must take into account all relevant factors, including the purposes set out in section 47, the requirements set out in section 48 and existing rights and interests.
Periodic Review
Commission
66. The Commission may review a land use plan periodically to verify whether, and the extent to which, it continues to achieve the purposes set out in section 47 and fulfil the requirements set out in section 48.
Public hearing
67. The Commission may, in conducting its review of the land use plan, hold a public hearing in accordance with the by-laws and rules made under section 17.
Implementation
Duty — general
68. Each federal or territorial minister, each department or agency and each municipality must, to the extent of their authority to do so, implement any land use plan that is in effect and carry out their activities in conformity with it.
Duty — licences, etc.
69. (1) Each regulatory authority must, to the extent of its authority to do so, ensure that any licence, permit or other authorization that it issues implements any applicable requirements of any applicable land use plan, including those identified under subsection 48(4).
Minor variances and ministerial exemptions
(2) If a minor variance or a ministerial exemption has been granted in respect of a project under paragraph 81(2)(a) or 82(2)(a), as the case may be, subsection (1) does not apply in respect of the requirements for that project in respect of which the variance or exemption was granted.
New prohibitions
(3) Subsection (1) does not apply in relation to land uses that,
(a) in the case of a project referred to in subsection 207(1), are prohibited by a land use plan approved after the day on which the project proposal was submitted in accordance with section 76 or by amendments made to a land use plan after that day;
(b) in the case of a project referred to in subsection 207(2) or paragraph 208(1)(a), are prohibited by a land use plan approved after the day on which the carrying out of the project was authorized under Part 3 or by amendments made to a land use plan after that day;
(c) in the case of the rebuilding of a work referred to in paragraph 208(1)(b), are prohibited by a land use plan approved after the day on which the carrying out of the project to which the work relates was authorized under Part 3 or by amendments made to a land use plan after that day;
(d) in the case of a project referred to in subsection 208(6) relating to a project that has been stopped or shut down for five years or more, are prohibited by a land use plan approved after the day on which the carrying out of the original project was authorized under Part 3 or by amendments made to a land use plan after that day; or
(e) in the case of a project referred to in subsection 208(6) relating to the rebuilding of a work that has been closed for five years or more, are prohibited by a land use plan approved after the day on which the carrying out of the original project to which the work relates was authorized under Part 3 or by amendments made to a land use plan after that day.
New terms and conditions
(4) For greater certainty, subsection (1) applies, in the case of a project described in any of paragraphs (3)(a) to (e), in relation to terms and conditions in respect of land uses that are set out in a land use plan approved after the day set out in the relevant paragraph or that are set out in amendments made to a land use plan after that day.
Additional or more stringent requirements
(5) For greater certainty, a regulatory authority may impose, to the extent of its authority to do so, requirements that are in addition to, or more stringent than, those referred to in subsection (1).
Consultation
(6) A regulatory authority may consult the Commission with a view to determining the most effective means of complying with its obligation under subsection (1) and may, for that purpose, send a draft licence, permit or other authorization to the Commission in order to obtain its comments and recommendations.
Parks and Conservation Areas
Existing parks and historic places
70. (1) This Part and the broad planning policies, priorities and objectives, the specific planning objectives and any land use plan, established under this Part, do not apply in respect of a park that has been established or to a historic place that has been designated under the Historic Sites and Monuments Act and is administered by the Parks Canada Agency.
Creation of parks and historic places
(2) This Part and the broad planning policies, priorities, objectives, the specific planning objectives and any land use plan, established under this Part, apply in respect of any initiative whose purpose is to establish a park or designate a historic place referred to in subsection (1).
Conservation area
(3) This Part and the broad planning policies, priorities, objectives, the specific planning objectives and any land use plan, established under this Part, apply in respect of conservation areas, other than historic places referred to in subsection (1), after they are established and to any initiative whose purpose is to establish such a conservation area.
Municipalities
Municipal plans — development
71. (1) The principles set out in Article 11 of the Agreement in respect of land use planning must guide the development of municipal land use plans for municipalities in the designated area.
Notice
(2) Each municipality must give the Commission written notice of the adoption of a municipal land use plan.
Compatibility of plans
72. The Commission and municipalities must cooperate for the purpose of ensuring compatibility between municipal land use plans and any land use plan established under this Part.
PART 3
ASSESSMENT OF PROJECTS TO BE CARRIED OUT IN THE DESIGNATED AREA
Interpretation
Definitions
73. (1) The following definitions apply in this Part.
“responsible Minister”
« ministre compétent »
« ministre compétent »
“responsible Minister” means
(a) the federal minister or the territorial minister, as the case may be, who has the jurisdictional responsibility for authorizing a project to proceed; or
(b) the Minister of Indian Affairs and Northern Development, if there is no federal minister or territorial minister who has the responsibility referred to in paragraph (a).
“traditional knowledge”
« connaissances traditionnelles »
« connaissances traditionnelles »
“traditional knowledge” means the accumulated body of knowledge, observations and understandings about the environment, and about the relationship of living beings with one another and with the environment, that is rooted in the traditional way of life of Inuit of the designated area.
Interpretation
(2) Paragraph (b) of the definition “responsible Minister” in subsection (1) applies if the responsibility for authorizing the project to proceed is under the sole jurisdiction of a designated regulatory agency set out in Sched- ule 2.
Compliance
Prohibitions
74. It is prohibited to carry out a project, in whole or in part, if
(a) a project proposal has not been submitted to the Commission in accordance with section 76;
(b) the assessment of the project under this Part has not been completed;
(c) the assessment of the project has been terminated under subsection 141(2), 142(2), 143(4) or (6) or 144(3);
(d) the Commission has determined, under section 77, that the project is not in conformity with any applicable land use plan and no minor variance or ministerial exemption has been granted under paragraph 81(2)(a) or 82(2)(a), as the case may be;
(e) the responsible Minister has decided either that the project could be modified and an amended project proposal submitted to the Commission or that it is not to proceed;
(f) the project is not carried out in accordance with any requirement identified, under subsection 48(4), in any applicable land use plan, other than a requirement in relation to which a minor variance or a ministerial exemption has been granted under paragraph 81(2)(a) or 82(2)(a), as the case may be; or
(g) the project is not carried out in accord- ance with the terms and conditions set out in the original or amended project certificate.
Regulatory authorities
75. (1) A regulatory authority is not authorized to issue a licence, permit or other authorization in respect of a project if
(a) a project proposal has not been submitted to the Commission in accordance with section 76;
(b) the assessment of the project under this Part has not been completed;
(c) the assessment of the project has been terminated under subsection 141(2), 142(2), 143(4) or (6) or 144(3);
(d) the Commission has determined, under section 77, that the project is not in conformity with any applicable land use plan and no minor variance or ministerial exemption has been granted in respect of the project under paragraph 81(2)(a) or 82(2)(a), as the case may be; or
(e) the responsible Minister has decided either that the project could be modified and an amended project proposal submitted to the Commission or that it is not to proceed.
No force or effect — licences, etc.
(2) A licence, permit or other authorization issued in contravention of any of paragraphs (1)(a) to (e) is of no force or effect.
Modification not significant
(3) A regulatory authority may issue any licence, permit or other authorization relating to a project approved under this Part that has not been significantly modified without a new assessment of the project being carried out under this Part.
Review by Commission
Project Proposal
Duty — proponent
76. (1) The proponent of a project to be carried out, in whole or in part, in the designated area must submit a project proposal to the Commission.
Content of proposal
(2) A project proposal must contain a description of the project prepared in accord- ance with the by-laws and rules made under paragraph 17(1)(e).
Grouping of related projects
(3) A proponent who intends to undertake two or more projects that are so closely related that they can be considered to form a single project must submit a single project proposal in respect of those projects, and they are deemed to be a single project for the purposes of this Act.
Notice
(4) The Commission must publish in its public registry a notice of receipt of the project proposal. That notice must contain a summary of the project, including a description of its nature and an indication of where it is to be carried out, and the proponent’s name.
Land Use Plan in Effect
Determination
Conformity with plan
77. (1) The Commission must determine if a project is in conformity with the land use plan that is applicable to the place where the project is to be carried out.
Multiple plans
(2) If different portions of the project are subject to different land use plans, the Commission must determine if each portion is in conformity with the land use plan applicable to it, and if one portion of the project is not in conformity with the land use plan applicable to it, the entire project is deemed to not be in conformity.
Project in Conformity with Land Use Plan
Verification — screening
78. (1) If the Commission determines that the project is in conformity with any applicable land use plan, it must verify whether the project is exempt from screening.
Exemption from screening
(2) A project is exempt from screening if each work or activity that comprises the project belongs to a class of exempt works or activities set out in items 1 to 6 of Schedule 12-1 to the Agreement or in Schedule 3 and does not belong to a class of non-exempt works or activities prescribed by regulation.
Commission may consult Board
(3) The Commission may request the Board’s opinion as to whether a particular project is exempt from screening.
Project not exempt from screening
79. If a project is not exempt from screening, the Commission must send the project proposal to the Board in order for it to conduct a screening.
Project exempt from screening
80. (1) If a project is exempt from screening and the Commission has concerns in respect of any cumulative ecosystemic and socio-economic impacts that could result from the impacts of the project combined with those of any other project that has been carried out, is being carried out or is likely to be carried out inside the designated area, or wholly or partly outside the designated area, it must send the project proposal to the Board in order for the Board to conduct a screening of the project.
No concerns — cumulative impacts
(2) If a project is exempt from screening and the Commission does not have concerns in respect of the cumulative impacts referred to in subsection (1), it must indicate in the decision that the assessment of the project has been completed and that the proponent may carry out the project, subject to paragraph 74(f) and to obtaining any licence, permit or other authorization required by or under any other Act of Parliament or any territorial law and complying with any other requirements set out in such an Act or law.
Location of impacts
(3) In performing its functions under subsections (1) and (2), the Commission must consider impacts both inside and outside the designated area.
Project Not in Conformity with Land Use Plan
Minor variance
81. (1) If the Commission determines that the project is not in conformity with an applicable land use plan, it must verify whether that land use plan authorizes it to grant a minor variance with respect to such a project and whether the conditions set out under subsection 48(3), if any, are met.
Minor variance authorized
(2) If the land use plan authorizes the granting of minor variances and if the conditions, if any, are met, the Commission may, within 20 days after its determination that the project is not in conformity with the plan,
(a) grant a minor variance, in which case it must verify whether the project is exempt from screening and comply with the requirements of section 79 or 80, as the case may be; or
(b) refuse to grant a minor variance.
Publication
(3) Before granting a minor variance under paragraph (2)(a), the Commission must make the proposed minor variance public and must do so in a manner designed to promote participation in its examination by the public.
Objection
(4) Any interested person may, within 10 days after the proposed minor variance is made public, indicate to the Commission in writing that the proposed minor variance should not be granted because
(a) the land use plan does not authorize the granting of the minor variance;
(b) the conditions subject to which a minor variance may be granted are not met; or
(c) the minor variance is not appropriate, in their opinion, for any other reason that they specify.
Reasons taken into account and public review
(5) The Commission may only grant a minor variance under paragraph (2)(a) after taking into account any reasons for which an interested person has indicated, under subsection (4), that it should not be granted and, if it considers it appropriate to do so, conducting a public review in accordance with the by-laws and rules made under section 17 and taking into account any submissions made during that review.
Extension of time limit
(6) If the Commission is of the opinion that more time is needed to make a decision under subsection (2), it may extend the period referred to in that subsection by up to 10 days and must notify the proponent of the extension in writing.
Request for ministerial exemption
82. (1) If the Commission determines that the project is not in conformity with an applicable land use plan, the proponent may request an exemption from the federal Minister or the territorial Minister, or both, taking into account their respective jurisdictions, within 60 days after
(a) that determination, if the land use plan does not authorize the granting of a minor variance or if it does and the conditions are not met; or
(b) the Commission’s decision to refuse to grant a minor variance.
Ministerial decision
(2) The Minister or Ministers, as the case may be, must, within 120 days after receiving a request under subsection (1) either
(a) grant the exemption, in which case the Commission must make the decision public, verify whether the project is exempt from screening and comply with the requirements of section 79 or 80, as the case may be; or
(b) refuse the exemption.
Consultation
(3) An exemption may only be granted after consultation with the Commission and the relevant regulatory authorities and relevant departments or agencies that are not regulatory authorities.
Extension of time limit
(4) If a Minister who has received a request is of the opinion that more time is needed to make a decision, that Minister may extend the period referred to in subsection (2) by up to 60 days and must notify the proponent and the Commission of the extension in writing.
Limitation
(5) For greater certainty, the Commission is not authorized to send the project proposal to the Board under section 79 or subsection 80(1) if it has determined, under section 77, that the project is not in conformity with any applicable land use plan and no minor variance or ministerial exemption has been granted in respect of the project under paragraph 81(2)(a) or 82(2)(a), as the case may be.
Time Limit
Performance of certain functions
83. (1) The Commission must exercise its powers and perform its duties and functions under sections 77 to 80 within 45 days after receiving the project proposal.
Time not counted
(2) If the Commission determines that a project is not in conformity with an applicable land use plan, any time required for the exercise of powers or the performance of duties or functions relating to minor variances and ministerial exemptions does not count as part of the period referred to in subsection (1).
Time not counted — public review
(3) If the Commission conducts a public review under subsection 81(5), any time required to conduct it does not count as part of the period referred to in subsection 81(2).
Time not counted — additional information
84. Any time required for the proponent to provide information required under subsection 144(1) does not count as part of the periods referred to in subsections 81(2) and (4) and 83(1).
No Land Use Plan
Verification — screening
85. (1) If there is no applicable land use plan, the Commission must, within 45 days after receiving the project proposal, verify whether the project is exempt from screening under subsection 78(2) and must comply with the requirements of section 79 or 80, as the case may be.
Request for opinion
(2) The Commission may request the Board’s opinion as to whether a particular project is exempt from screening.
Time not counted — additional information
(3) Any time required for the proponent to provide information required under subsection 144(1) does not count as part of the period referred to in subsection (1).
Screening by Board
Scope of project
86. (1) The Board must determine the scope of a project in relation to which a project proposal is received under section 79 or subsection 80(1) and must
(a) include within the scope of the project, in addition to any work or activity identified in the project proposal, any other work or activity that it considers sufficiently related to the project to form part of it; and
(b) exclude from the scope of the project any work or activity identified in the project proposal that it considers insufficiently related to the project to form part of it.
Consultation
(2) The Board may only make an inclusion under paragraph (1)(a) or an exclusion under paragraph (1)(b) after consulting with the proponent in respect of the contemplated changes and taking into account any comments the proponent may make in respect of them.
Process suspended
(3) If the Board makes an inclusion under paragraph (1)(a), it must not proceed with the screening and the Commission and the federal Minister or the territorial Minister, or both, must exercise their powers and perform their duties and functions under sections 77, 81 and 82 in relation to the entire project.
Screening
87. (1) The Board must screen the project if it makes no inclusion under paragraph 86(1)(a) or if it makes an inclusion under that paragraph and the Commission, after exercising its powers and performing its duties and functions in relation to the entire project, comes to the conclusion referred to in section 79 or subsection 80(1).
Limitation
(2) For greater certainty, the Board is not authorized to screen a project if the Commission has determined, under section 77, that the project is not in conformity with any applicable land use plan and no minor variance or ministerial exemption has been granted in respect of the project under paragraph 81(2)(a) or 82(2)(a), as the case may be.
Purpose of screening
88. The purpose of screening a project is to determine whether the project has the potential to result in significant ecosystemic or socio-economic impacts and, accordingly, whether it requires a review by the Board or by a federal environmental assessment panel, as the case may be.
Project to be reviewed
89. (1) The Board must be guided by the following considerations when it is called on to determine, on the completion of a screening, whether a review of the project is required:
(a) a review is required if, in the Board’s opinion,
(i) the project may have significant adverse ecosystemic or socio-economic impacts or significant adverse impacts on wildlife habitat or Inuit harvest activities,
(ii) the project will cause significant public concern, or
(iii) the project involves technological innovations, the effects of which are unknown; and
(b) a review is not required if, in the Board’s opinion,
(i) the project is unlikely to cause significant public concern, and
(ii) its adverse ecosystemic and socio-economic impacts are unlikely to be significant, or are highly predictable and can be adequately mitigated by known technologies.
Prevailing considerations
(2) The considerations set out in paragraph (1)(a) prevail over those set out in paragraph (1)(b).
Definition of “harvest”
(3) In subparagraph (1)(a)(i), “harvest” has the same meaning as in section 1.1.1 of the Agreement.
Significance of impacts — factors
90. In determining the significance of impacts for the purposes of section 88 and subparagraphs 89(1)(a)(i) and (b)(ii), the Board must take into account the following factors:
(a) the size of the geographic area, including the size of wildlife habitats, likely to be affected by the impacts;
(b) the ecosystemic sensitivity of that area;
(c) the historical, cultural and archaeological significance of that area;
(d) the size of the human and the animal populations likely to be affected by the impacts;
(e) the nature, magnitude and complexity of the impacts;
(f) the probability of the impacts occurring;
(g) the frequency and duration of the impacts;
(h) the reversibility or irreversibility of the impacts;
(i) the cumulative impacts that could result from the impacts of the project combined with those of any other project that has been carried out, is being carried out or is likely to be carried out; and
(j) any other factor that the Board considers relevant to the assessment of the significance of impacts.
Project to be modified or abandoned
91. The Board must make a determination that a project should be modified or abandoned if the Board is of the opinion that the project has the potential to result in unacceptable adverse ecosystemic or socio-economic impacts.
Report — Board
92. (1) The Board must submit a written report to the responsible Minister containing a description of the project that specifies its scope and indicating that
(a) a review of the project is not required;
(b) a review of the project is required; or
(c) the project should be modified or abandoned.
Other information
(2) In its report, the Board may also
(a) recommend specific terms and conditions to apply in respect of a project that it determines may be carried out without a review;
(b) identify particular issues or concerns that should be considered in the review of a project that it determines should be reviewed; and
(c) provide information regarding the nature and extent of the regional impacts of a project that the responsible Minister must take into account when determining whether a project is in the regional interest.
Time of report
(3) The Board must submit the report and the project proposal to the responsible Minister within a period that allows the relevant regulatory authorities to issue, within any period prescribed by law or regulation, a licence, permit or other authorization in respect of the project or, if it is earlier, within 45 days after the latest of
(a) the day on which the Board receives the project proposal under section 79 or subsection 80(1),
(b) the day on which the Board receives any information that is required under subsection 144(1), and
(c) the day on which the Board receives a decision, by reason of subsection 86(3), that the project is in conformity with any appli- cable land use plan, that a minor variance or a ministerial exemption has been granted in respect of it or that there is no land use plan applicable to the project.
Extension of time limit
(4) If the responsible Minister is of the opinion that more time is needed for the Board to submit the report, that Minister may extend the period referred to in subsection (3) and must notify the proponent and the Board of the extension in writing.
Board determines review not necessary
93. (1) If the Board determines that a review of the project is not required, the responsible Minister must, within 15 days after receiving the Board’s report, either
(a) agree with that determination, in which case the responsible Minister must indicate in the decision that the assessment of the project has been completed and that the proponent may carry out the project, subject to paragraph 74(f) and to obtaining any licence, permit or other authorization required by or under any other Act of Parliament or any territorial law and complying with any other requirements set out in such an Act or law; or
(b) reject that determination, if the responsible Minister is of the opinion that the project should be reviewed, in which case subparagraph 94(1)(a)(i), (ii), (iii) or (iv) applies to the project proposal.
Extension of time limit
(2) If the responsible Minister is of the opinion that more time is needed to exercise powers and perform duties and functions in respect of the report, that Minister may extend the period referred to in subsection (1) by up to 120 days and must notify the proponent and the Board of the extension in writing.
Deemed decision
(3) The responsible Minister is deemed to have made a decision under paragraph (1)(a) if, within the period referred to in subsection (1), that Minister does not make a decision under that subsection and does not extend that period under subsection (2).
Board determines review necessary
94. (1) If the Board determines that a review of the project is required, the responsible Minister must, within 90 days after receiving the Board’s report, either
(a) agree with that determination and send the project proposal
(i) to the Minister of the Environment in order that a federal environmental assessment panel conduct the review if the project involves a matter of national interest and the responsible Minister — after consultation with the Minister of the Environment, the territorial minister and the Board — determines that it is more appropriate for the review to be conducted by such a panel than by the Board,
(ii) to the Minister of the Environment in order that a federal environmental assessment panel or a joint panel conduct the review, as the case may be, if the project is to be carried out partly outside the designated area,
(iii) despite subparagraph (ii), to the Board to conduct the review if the project is to be carried out partly outside the designated area and the responsible Minister, the Minister of the Environment and the Board determine that the review is to be conducted by the Board, or
(iv) to the Board for a review in any other case; or
(b) reject that determination if in that Minister’s opinion the project is not in the national or regional interest, and indicate in that Minister’s decision either that the project could be modified and an amended project proposal submitted to the Commission or that the project is not to proceed.
Limit
(2) The responsible Minister may only send a project proposal to the Minister of the Environment under subparagraph (1)(a)(i) on an exceptional basis.
Transportation of persons or goods
(3) Despite subparagraphs (1)(a)(ii) and (iii), if the only activity relating to a project to be carried out outside the designated area is the transportation of persons or goods, the responsible Minister must send the project proposal to the Board to conduct the review unless that Minister determines that the transportation of persons or goods is a significant element of the project and that it is more appropriate for the review to be conducted by a federal environmental assessment panel or a joint panel, as the case may be, than by the Board and the Minister of the Environment agrees with that determination.
Consultation
(4) In exercising the powers and performing the duties and functions under subsection (3), the responsible Minister may consult with the Board and the Minister of Environment.
Territorial minister
(5) If the responsible Minister is a territorial minister, the reference to “responsible Minister” in subparagraph (1)(a)(i) means the federal Minister.
Extension of time limit
(6) If the responsible Minister is of the opinion that more time is needed to exercise powers and perform duties and functions in respect of the report, that Minister may extend the period referred to in subsection (1) by up to 90 days and must notify the proponent and the Board of the extension in writing.
Board determines project be modified or abandoned
95. If the Board determines that a project should be modified or abandoned, the responsible Minister must, within 150 days after receiving the Board’s report and after consultation with the Board, either
(a) agree with the determination that the project has the potential to result in unacceptable adverse ecosystemic and socio-economic impacts and in the decision indicate either that
(i) the project could be modified and an amended project proposal submitted to the Commission, or
(ii) the project is not to proceed; or
(b) reject that determination if the responsible Minister is of the opinion that it is in the national or regional interest that the project be reviewed, in which case subparagraph 94(1)(a)(i), (ii), (iii) or (iv) applies to the project proposal.
Particular issues or concerns — Board
96. (1) The responsible Minister may, when sending a project proposal to the Board for review under subparagraph 94(1)(a)(iii) or (iv) or subsection 94(3), identify particular issues or concerns, including those referred to in paragraph 92(2)(b), that must be considered by the Board in its review of the project.
Interpretation
(2) For greater certainty, nothing in subsection (1) restricts the Board’s ability to consider any other issue or concern within its jurisdiction in the course of its review.
Particular issues or concerns — panel
97. When sending a project proposal to a federal environmental assessment panel under subparagraph 94(1)(a)(i) or (ii), the responsible Minister may, in consultation with the Minister of the Environment, identify particular issues or concerns, including those referred to in paragraph 92(2)(b), that must be considered by the federal environmental assessment panel or a joint panel, as the case may be, in its review of the project.
Location of impacts
98. The ecosystemic and socio-economic impacts of the project both inside and outside of the designated area must be taken into account for the purposes of sections 88 to 97.
Review
Board
Scope of project
99. (1) The Board must determine the scope of a project in relation to which a project proposal is received under subparagraph 94(1)(a)(iv) and the Board must
(a) include within the scope of the project, in addition to any work or activity identified in the project proposal, any other work or activity that it considers sufficiently related to the project to form part of it; and
(b) exclude from the scope of the project any work or activity identified in the project proposal that it considers insufficiently related to the project to form part of it.
Consultation
(2) The Board may only make an inclusion under paragraph (1)(a) or an exclusion under paragraph (1)(b) after consulting with the proponent in respect of the contemplated changes and taking into account any comments the proponent may make in respect of them.
Process suspended
(3) If the Board makes an inclusion under paragraph (1)(a), it must not proceed with the review and the Commission and the federal Minister or the territorial Minister, or both, must exercise their powers and perform their duties and functions under sections 77, 81 and 82 in relation to the entire project.
Review
100. The Board must review the project if it makes no inclusion under paragraph 99(1)(a) or if it makes an inclusion under that paragraph and
(a) the Commission, after exercising its powers and performing its duties and functions in relation to the entire project, comes to the conclusion referred to in section 79 or subsection 80(1); and
(b) following the new screening, it is determined under subparagraph 94(1)(a)(iv) that the Board is to conduct the review of the project.
Impact statement — guidelines
101. (1) The Board must issue guidelines in respect of the preparation by the proponent of a statement of the ecosystemic and socio-economic impacts of the project.
Exception
(2) Despite subsection (1), the Board need not issue guidelines if it is of the opinion that the information contained in the description of the project or information provided under subsection 144(1) is sufficient to allow it to conduct a review of the project.
Content of impact statement
(3) The guidelines must specify which of the following types of information the proponent is required to include in the impact statement:
(a) a description of the project, the purpose of, and need for, the project;
(b) the anticipated effects of the environment on the project, including effects associated with natural phenomena, such as meteorolog- ical and seismological activity, and climate change;
(c) the anticipated ecosystemic and socio-economic impacts of the project, including those arising from the effects referred to in paragraph (b);
(d) the measures proposed by the proponent to
(i) avoid and mitigate adverse ecosystemic and socio-economic impacts, including contingency plans,
(ii) optimize the benefits of the project, with specific consideration given to expressed community and regional preferences in regard to benefits,
(iii) compensate persons whose interests are adversely affected by the project, and
(iv) restore ecosystemic integrity after the permanent closure of the project;
(e) any monitoring program of the project’s ecosystemic and socio-economic impacts that the proponent proposes to establish;
(f) the interests in land and waters that the proponent has acquired or seeks to acquire;
(g) options for carrying out the project that are technically and economically feasible and the anticipated ecosystemic and socio-economic impacts of those options; and
(h) any other type of information relating to a matter within the Board’s jurisdiction that the Board considers relevant in the circumstances.
Comments
(4) The Board must make a draft of the guidelines public, in both official languages of Canada and in Inuktitut, and must solicit written and oral comments on them from appropriate departments or agencies, appropriate designated Inuit organizations, affected municipalities, interested corporations and organizations, Inuit and other residents of the designated area and the general public.
Guidelines sent to proponent
(5) After allowing a reasonable period for submission of comments, the Board must, taking into account the comments received, make any changes to the draft guidelines that it considers necessary and send the guidelines to the proponent.
Submission of statement
(6) The proponent must submit an impact statement prepared in accordance with the guidelines to the Board.
Conduct of review
102. (1) The Board must conduct its review of the project in the manner that it considers appropriate to the nature of the project and the range and extent of its ecosystemic and socio-economic impacts, including by means of correspondence or by holding a public hearing in accordance with the by-laws and rules made under section 26.
Public hearing
(2) The Board must take all necessary steps to promote public awareness of and participation in any public hearing to be held in respect of a project, including through the choice of the date, time and place of the hearing, notice given in relation to them and measures taken to disseminate any relevant information.
Summon witnesses, etc.
(3) The Board has, in respect of public hearings, the power to summon any person to appear as a witness before the Board and to order the witness to
(a) give evidence, orally or in writing; and
(b) produce any documents or other things that the Board considers necessary to conduct its review of the project.
Enforcement of attendance, etc.
(4) The Board has the same power to enforce the attendance of witnesses and to compel them to give evidence and produce documents and other things as a superior court.
Hearing may be closed to public
(5) The Board may close all or part of a hearing to the public if it is satisfied, after submissions made by a proponent or any other witness, that the evidence, documents or things to be disclosed in the hearing contain
(a) confidential, personal, business proprietary or privileged information; or
(b) information whose disclosure would cause specific, direct and substantial harm to the witness or cause specific ecosystemic or socio-economic harm.
Non-disclosure
(6) Evidence, documents or things referred to in subsection (5) must not be, or be permitted to be, disclosed without the authorization of the witness, by any person who has obtained the evidence, documents or things under this Act.
Enforcement of summonses and orders
(7) A summons issued or an order made by the Board under subsection (3) may be made a summons or order of the Nunavut Court of Justice by filing a certified copy of it with the registrar of the court and, when so made, is enforceable in the same manner as a summons or order of that court.
Factors to consider
103. (1) In conducting a review of a project, the Board must take into account the following factors:
(a) the purpose of the project and the need for the project;
(b) whether, and to what extent, the project would protect and enhance the existing and future well-being of the residents and communities of the designated area, taking into account the interests of other Canadians;
(c) whether the project reflects the priorities and values of the residents of the designated area;
(d) the anticipated effects of the environment on the project, including effects associated with natural phenomena, such as meteorolog- ical and seismological activity, and climate change;
(e) the anticipated ecosystemic and socio-economic impacts of the project, including those arising from the effects referred to in paragraph (d);
(f) the cumulative ecosystemic and socio-economic impacts that could result from the impacts of the project combined with those of any other project that has been carried out, is being carried out or is likely to be carried out;
(g) whether the impacts referred to in paragraphs (e) and (f) would unduly prejudice the ecosystemic integrity of the designated area;
(h) the measures, including those proposed by the proponent, that should be taken to
(i) avoid and mitigate adverse ecosystemic and socio-economic impacts, including contingency plans,
(ii) optimize the benefits of the project, with specific consideration given to expressed community and regional preferences in regard to benefits,
(iii) compensate persons whose interests are adversely affected by the project, and
(iv) restore ecosystemic integrity after the permanent closure of the project;
(i) the significance of the impacts referred to in paragraphs (e) and (f), taking into account the measures referred to in paragraph (h);
(j) the capacity of renewable resources that are likely to be significantly affected by the project to meet the existing and future needs of the residents of the designated area;
(k) any monitoring program of the project’s ecosystemic and socio-economic impacts that should be established, including one proposed by the proponent;
(l) the interests in land and waters that the proponent has acquired or seeks to acquire;
(m) the options for carrying out the project that are technically and economically feasible and the anticipated ecosystemic and socio-economic impacts of such options;
(n) the posting of performance bonds;
(o) the particular issues or concerns identified under subsection 96(1); and
(p) any other matter within the Board’s jurisdiction that, in its opinion, should be considered.
Significance
(2) In assessing the significance of impacts for the purposes of paragraph (1)(i), the Board must take into account the factors set out in paragraphs 90(a) to (j).
Traditional knowledge
(3) In its review of a project, the Board must take into account any traditional knowledge or community knowledge provided to it.
Report — Board
104. (1) Within 45 days after the end of the Board’s review of a project, the Board must submit a written report, containing a description of the project that specifies its scope, to the responsible Minister and setting out
(a) its assessment of the project and its ecosystemic and socio-economic impacts;
(b) its determination, based on that assessment, as to whether the project should or should not proceed; and
(c) if it determines that a project should proceed, any terms and conditions that it recommends should apply in respect of the project.
Ministerial direction
(2) If, in the opinion of the responsible Minister, the report is deficient with respect to issues relating to the ecosystemic and socio-economic impacts of the project, the responsible Minister must, within 90 days after receiving the Board’s report, advise the Board of the deficiency.
Revised report
(3) If the responsible Minister advises the Board of a deficiency in its report, the Board must conduct a further review of the issues identified by that Minister, including holding any public hearing that it is directed by the responsible Minister to hold or that it considers necessary, and provide a revised report to the responsible Minister within 45 days after the end of that further review.
Determination to proceed
105. If the Board determines that a project should proceed, the responsible Minister must, within 150 days after receiving the Board’s report, either
(a) agree with that determination and either
(i) accept the terms or conditions recommended in the report, or
(ii) reject those terms and conditions on one or more of the following grounds:
(A) one or more of the terms or conditions are insufficient, or more onerous than necessary, to adequately mitigate the adverse ecosystemic and socio-economic impacts of the project, or
(B) the terms or conditions are so onerous that to impose them would undermine the viability of a project that is in the national or regional interest; or
(b) reject that determination if, in the opinion of the responsible Minister, the project is not in the national or regional interest.
Determination not to proceed
106. If the Board makes a determination that a project should not proceed, the responsible Minister must, within 150 days after receiving the Board’s report, either
(a) agree with that determination; or
(b) reject that determination if, in the opinion of the responsible Minister, the project is in the national or regional interest.
Revised report — rejection of conditions
107. (1) Within 30 days after a decision is made under subparagraph 105(a)(ii), or within any other period that may be agreed on between the Board and the responsible Minister, the Board must reconsider, in light of that Minister’s reasons, the terms and conditions it had recommended, make any changes it considers appropriate and submit a revised report to that Minister, which it must make public, containing terms and conditions that it recommends should apply in respect of the project.
Revised report — rejection of determination
(2) Within 30 days after a decision is made under paragraph 106(b), or within any other period that may be agreed on between the Board and the responsible Minister, the Board must submit a revised report to that Minister, which it must make public, containing terms and conditions that it recommends should apply in respect of the project.
Minister’s decision
(3) The responsible Minister must, within 120 days after receiving a report submitted under subsection (1) or (2), in respect of each term or condition recommended in that report either
(a) accept it; or
(b) reject it or vary it in any manner that that Minister considers appropriate if, alone or combined with other terms or conditions,
(i) it is insufficient, or more onerous than necessary, to adequately mitigate the adverse ecosystemic and socio-economic impacts of the project, or
(ii) it is so onerous that it would undermine the viability of the project that is in the national or regional interest.
Additional terms and conditions
(4) In exercising the powers and performing the duties and functions under subsection (3), the responsible Minister may impose additional terms and conditions in order to adequately mitigate the adverse ecosystemic and socio-economic impacts of the project.
Socio-economic terms and conditions
108. Despite paragraphs 105(a) and 107(3)(b), the responsible Minister may reject, or vary in any manner that that Minister considers appropriate, any recommended term or condition that is related to the socio-economic impacts of the project and that is not related to its ecosystemic impacts.
Consultation
109. If a department or agency has indicated to the responsible Minister that the project involves an interest within their jurisdiction, that Minister must consult with that department or agency before making any decision under section 105 or 106, subsection 107(3) or (4) or section 108.
Notification by Minister
110. The responsible Minister must, as soon as practicable, notify the Board in writing of the terms and conditions, established under sections 105 to 109, that are to apply in respect of a project.
Project certificate
111. (1) Within 30 days after receiving the notice under section 110, the Board must issue a project certificate that sets out the terms and conditions contained in that notice.
Terms and conditions
(2) A term or condition may become effective on the issuance of the project certificate or at a future time, or on the happening of any specified contingency, event or the fulfilment of any condition. In addition, a term or condition may have force for a limited time or until the happening of a specified event or the fulfilment of any condition.
Content of certificate
(3) A project certificate must indicate that the assessment of the project has been completed and that the proponent may carry out the project, subject to paragraphs 74(f) and (g) and to obtaining any licence, permit or other authorization required by or under any other Act of Parliament or any territorial law and complying with any other requirements set out in such an Act or law.
Statutory Instruments Act
(4) Project certificates are not statutory instruments for the purposes of the Statutory Instruments Act.
Extension of time limit
(5) If the responsible Minister is of the opinion that more time is needed for the Board to issue the project certificate, that Minister may extend the period referred to in subsection (1) by up to 45 days and must notify the proponent and the Board of the extension in writing.
Reconsideration of terms and conditions
112. (1) The Board may, on its own initiative or at the request of the designated Inuit organization, the proponent or any interested person, reconsider the terms and conditions set out in a project certificate that it has issued if
(a) the terms and conditions are not achieving their intended purpose or are having effects that are significantly different from those anticipated at the time the certificate was issued;
(b) the circumstances relating to the project are significantly different from those anticipated at the time the certificate was issued; or
(c) technological developments or new information provides a more efficient method of achieving the intended purpose of the terms and conditions.
Minister’s initiative
(2) The Board must reconsider the terms and conditions set out in a project certificate that it has issued if the responsible Minister is of the opinion that any of paragraphs (1)(a) to (c) applies.
Notice
(3) The Board must notify the proponent and the responsible Minister in writing of a reconsideration undertaken under subsection (1) or the proponent of a reconsideration undertaken under subsection (2).
Conduct of reconsideration
(4) The Board may conduct its reconsideration of the terms and conditions in the manner that it considers appropriate in the circumstances.
Report
(5) Within 45 days after the end of the Board’s reconsideration under subsection (1) or (2), the Board must submit a written report to the responsible Minister that contains
(a) an assessment of the terms and conditions in force; and
(b) any terms and conditions that it recommends should apply in respect of the project.
Minister’s decision
(6) The responsible Minister must, within 90 days after receiving a report submitted under subsection (5), in respect of each term or condition recommended in that report either
(a) accept it; or
(b) reject it or vary it in any manner that that Minister considers appropriate, under section 108 or if, alone or combined with other terms or conditions,
(i) it is insufficient, or more onerous than necessary, to adequately mitigate the adverse ecosystemic and socio-economic impacts of the project, or
(ii) it is so onerous that it would undermine the viability of the project that is in the national or regional interest.
Additional terms and conditions
(7) In exercising the powers and performing the duties and functions under subsection (6), the responsible Minister may impose additional terms and conditions in order to adequately mitigate the adverse ecosystemic and socio-economic impacts of the project.
Extension of time limit
(8) If the responsible Minister is of the opinion that more time is needed to exercise powers and perform duties and functions in respect of the report, that Minister may extend the period referred to in subsection (6) by up to 90 days and must notify the proponent of the extension in writing.
Notification by Minister
(9) The responsible Minister must, as soon as practicable, notify the Board in writing of the terms and conditions, established in accordance with subsections (6) and (7), that are to apply in respect of a project.
Amended project certificate
(10) Within 30 days after receiving the notice under subsection (9), the Board must issue an amended project certificate that sets out the terms and conditions contained in that notice.
Location of impacts
113. The ecosystemic and socio-economic impacts of the project, both inside and outside of the designated area, must be taken into account for the purposes of sections 101 to 112.
Priority
114. The responsible Minister may indicate to the Board that a review or a reconsideration of terms and conditions is a priority in relation to other reviews or reconsiderations and may propose a reasonable period within which it must be completed.
Federal Environmental Assessment Panel
Establishment
115. (1) After receiving a project proposal under subparagraph 94(1)(a)(i), the Minister of the Environment must establish a federal environmental assessment panel consisting of members, including a Chairperson, appointed by that Minister.
Composition
(2) The following rules apply in respect of the appointment of members of the panel, other than the Chairperson:
(a) at least one quarter of the members must be appointed on the nomination of the territorial Minister; and
(b) at least one quarter of the members must be appointed on the nomination of the organization referred to in paragraph (a) of the definition “designated Inuit organization” in subsection 2(1).
Impartiality and qualifications
(3) The Minister of the Environment must appoint as members of the panel persons who are unbiased and free from any conflict of interest relative to the project and who have special knowledge or experience relevant to the anticipated technical, environmental or social impacts of the project.
Status of Inuk
(4) A panel member is not placed in a conflict of interest solely because the member is an Inuk as defined in section 1.1.1 of the Agreement.
Eligibility
(5) A person is not ineligible for appointment to a panel merely because the person is a member of the Board.
Primary objectives
116. (1) A federal environmental assessment panel must exercise its powers and perform its duties and functions in accordance with the following primary objectives:
(a) to protect and promote the existing and future well-being of the residents and communities of the designated area; and
(b) to protect the ecosystemic integrity of the designated area.
Other residents
(2) The panel must take into account the well-being of residents of Canada outside the designated area when exercising its powers or performing its duties and functions in accord- ance with the objective set out in paragraph (1)(a).
Interpretation
(3) For greater certainty, the panel must exercise its powers and perform its duties and functions under paragraph 123(1)(c) in accord- ance with the objectives set out in subsection (1).
Terms of reference
117. The Minister of the Environment must, in consultation with the responsible Minister, fix the terms of reference for the panel and send the project proposal to the panel. The Minister of the Environment must include in the terms of reference any issues or concerns identified under section 97 and may identify other issues or concerns that must also be considered by the panel in its review of the project.
Scope of project
118. (1) The Minister of the Environment must, in consultation with the responsible Minister, determine the scope of the project and, in making that determination, must
(a) include within the scope of the project, in addition to any work or activity identified in the project proposal, any other work or activity that the Minister of the Environment considers sufficiently related to the project to form part of it; and
(b) exclude from the scope of the project any work or activity identified in the project proposal that the Minister of the Environment considers insufficiently related to the project to form part of it.
Consultation
(2) The Minister of the Environment may only make an inclusion under paragraph (1)(a) or an exclusion under paragraph (1)(b) after consulting with the proponent in respect of the contemplated changes and taking into account any comments the proponent may make in respect of them.
Process suspended
(3) If the Minister of the Environment makes an inclusion under paragraph (1)(a), the panel must not proceed with the review and the Commission as well as the federal Minister or the territorial Minister, or both, must exercise their powers and perform their duties and functions under sections 77, 81 and 82 in relation to the entire project.
Review
119. The panel must review the project if the Minister of the Environment has not made an inclusion under paragraph 118(1)(a) or if that Minister made an inclusion under that paragraph and the panel receives a decision, by reason of subsection 118(3), that the entire project is in conformity with any applicable land use plan, that a minor variance or a ministerial exemption has been granted in respect of it or that there is no land use plan applicable to it.
Impact statement — guidelines
120. (1) A federal environmental assessment panel must issue guidelines in respect of the preparation of a statement by the proponent on the ecosystemic and socio-economic impacts of the project.
Exception
(2) Despite subsection (1), a panel need not issue guidelines if it is of the opinion that the information contained in the description of the project or information submitted under subsection 144(1) is sufficient to allow it to conduct a review of the project.
Content of impact statement
(3) The guidelines must specify the types of information referred to in subsection 101(3) that the proponent must include in the impact statement.
Comments — Board
(4) The panel must send a draft of the guidelines to the Board, and the Board must provide its comments on them to the panel.
Comments — departments or agencies, etc.
(5) The panel must make a draft of the guidelines public, in both official languages of Canada and in Inuktitut and must solicit written and oral comments on them from appropriate departments or agencies, appropriate designated Inuit organizations, affected municipalities, interested corporations and organizations, Inuit and other residents of the designated area and the general public.
Consultation
(6) After receiving the Board’s comments and after allowing a reasonable period for the submission of comments under subsection (5), the panel must, taking into account the comments received, make any changes to the draft guidelines that it considers necessary and send the guidelines to the proponent.
Submission of statement
(7) The proponent must submit an impact statement prepared in accordance with the guidelines to the panel.
Recommendations — Board
(8) As soon as practicable after receiving the impact statement, the panel must send it to the Board so that the Board has sufficient time to analyse the statement and provide its concerns or recommendations to the panel no later than five days before the public hearing.
Recommendations taken into account
(9) The panel must take into account the Board’s concerns and recommendations with respect to the impact statement.
Public hearing
121. (1) A federal environmental assessment panel must hold a public hearing in respect of a project.
Duty
(2) The panel must take all necessary steps to promote public awareness of and participation in the public hearing, including through the choice of the date, time and place of the hearing, notice given in relation to them and measures taken to disseminate any relevant information.
Informal proceedings
(3) A panel must, to the extent that is consistent with the general application of the rules of procedural fairness and natural justice, emphasize flexibility and informality in the conduct of public hearings and in particular must
(a) allow, if appropriate, the admission of evidence that would not normally be admissible under the strict rules of evidence; and
(b) give due regard and weight to the Inuit traditions regarding oral communication and decision-making.
Designated Inuit organization
(4) A designated Inuit organization has full standing to appear at a public hearing for the purpose of making submissions on behalf of the people it represents.
Languages
(5) The panel must conduct any public hearing in both of the official languages of Canada in accordance with the Official Languages Act and any directives of the responsible Minister and, on request by a member, a proponent or an intervenor, in Inuktitut.
Members
(6) Nothing in subsection (5) is to be construed as preventing the use of translation or interpretation services if a member is otherwise unable to conduct business in either official language or in Inuktitut.
Witnesses
(7) The panel has the duty to ensure that any witness giving evidence before it may be heard in either official language or in Inuktitut, and that in being so heard the witness will not be placed at a disadvantage by not being heard in another of those languages.
Summon witnesses, etc.
(8) A panel has, in respect of public hearings, the power to summon any person to appear as a witness before the panel and to order the witness to
(a) give evidence, orally or in writing; and
(b) produce any documents or other things that the panel considers necessary to conduct its review of the project.
Enforcement of attendance, etc.
(9) A panel has the same power to enforce the attendance of witnesses and to compel them to give evidence and produce documents and things as a superior court.
Hearing may be closed to public
(10) A panel may close all or part of a hearing to the public if it is satisfied, after submissions made by a proponent or other witness, that the evidence, documents or things to be disclosed in the hearing contain
(a) confidential, personal, business proprietary or privileged information; or
(b) information whose disclosure would cause specific, direct and substantial harm to the witness or cause specific ecosystemic or socio-economic harm.
Non-disclosure
(11) Evidence, documents or things referred to in subsection (10) must not be, or be permitted to be, disclosed without the authorization of the witness, by any person who has obtained the evidence, documents or things under this Act.
Enforcement of summonses and orders
(12) A summons issued or an order made by a panel under subsection (8) may be made a summons or order of the Nunavut Court of Justice by filing a certified copy of it with the registrar of the court and, when so made, is enforceable in the same manner as a summons or order of that court.
Factors to consider
122. (1) In conducting a review of a project, a federal environmental assessment panel must take into account the following factors:
(a) the purpose of the project, and the need for the project;
(b) whether, and to what extent, the project would protect and enhance the existing and future well-being of the residents and communities of the designated area while taking into account the interests of other Canadians;
(c) whether the project reflects the priorities and values of the residents of the designated area;
(d) the anticipated effects of the environment on the project, including effects associated with natural phenomena, such as meteorolog- ical and seismological activity, and climate change;
(e) the anticipated ecosystemic and socio-economic impacts of the project, including those arising from the effects referred to in paragraph (d);
(f) the cumulative ecosystemic and socio-economic impacts that could result from the impacts of the project combined with those of any other project that has been carried out, is being carried out or is likely to be carried out;
(g) whether the impacts referred to in paragraphs (e) and (f) would unduly prejudice the ecosystemic integrity of the designated area;
(h) the measures, including those proposed by the proponent, that should be taken to
(i) avoid and mitigate adverse ecosystemic and socio-economic impacts, including contingency plans,
(ii) optimize the benefits of the project, with specific consideration given to expressed community and regional preferences in regard to benefits,
(iii) compensate persons whose interests are adversely affected by the project, and
(iv) restore ecosystemic integrity after the permanent closure of the project;
(i) the significance of the impacts referred to in paragraphs (e) and (f), taking into account the measures referred to in paragraph (h);
(j) the capacity of renewable resources that are likely to be significantly affected by the project to meet the existing and future needs of the residents of the designated area;
(k) any monitoring program of the project’s ecosystemic and socio-economic impacts that should be established, including one proposed by the proponent;
(l) the interests in land and waters that the proponent has acquired or seeks to acquire;
(m) options for carrying out the project that are technically and economically feasible and the anticipated ecosystemic and socio-economic impacts of such options;
(n) the posting of performance bonds;
(o) the particular issues or concerns identified under sections 97 and 117;
(p) the concerns and recommendations referred to in subsection 120(8); and
(q) any other matter within its jurisdiction that, in its opinion, should be considered.
Significance of impacts
(2) In determining the significance of impacts for the purposes of paragraph (1)(i), the panel must take into account the factors set out in paragraphs 90(a) to (j).
Knowledge
(3) In its review of a project, the panel must take into account any traditional knowledge or community knowledge provided to it.
Report — panel
123. (1) Within 120 days after the end of its review of a project, the federal environmental assessment panel must submit a written report, containing a description of the project that specifies its scope, to the responsible Minister and the Minister of the Environment and setting out
(a) its assessment of the project and its ecosystemic and socio-economic impacts;
(b) its determination, based on that assessment, as to whether the project should or should not proceed; and
(c) if it determines that a project should proceed, any terms and conditions that it recommends should apply in respect of the project.
Report made public
(2) The responsible Minister and the Minister of the Environment must send the panel’s report to the Board and make it public.
Extension of time limit
(3) If the responsible Minister is of the opinion that more time is needed for the panel to submit the report, that Minister may extend the period referred to in subsection (1) by up to 60 days and must notify the proponent, the Board and the Minister of the Environment of the extension in writing.
Conclusions — Board
124. Within 60 days after receiving the panel’s report, the Board must, in writing, provide the responsible Minister with its findings and conclusions regarding the ecosystemic and socio-economic impacts of the project, including
(a) any deficiencies that it has identified in the panel’s report;
(b) any additional information that it recommends should be obtained;
(c) its determination as to whether the project should or should not proceed; and
(d) if it determines that a project should proceed, any terms and conditions that it recommends should apply in respect of the project, including mitigative measures.
Determination to proceed
125. If a federal environmental assessment panel determines that a project should proceed, the responsible Minister must, after considering the panel’s report and the Board’s findings and conclusions and within 240 days after receiving the panel’s report, either
(a) agree with that determination and either
(i) accept the terms and conditions recommended in the panel’s report, with or without the Board’s recommended modifications under paragraph 124(d), or
(ii) reject them on the grounds that one or more of the terms and conditions are insufficient, or more onerous than necessary, to adequately mitigate the adverse ecosystemic and socio-economic impacts of the project; or
(b) reject that determination if, in that Minister’s opinion, the project is not in the national or regional interest.
Determination not to proceed
126. If a panel makes a determination that a project should not proceed, the responsible Minister must, after considering the panel’s report and the Board’s findings and conclusions and within 240 days after receiving the panel’s report, either
(a) agree with that determination; or
(b) reject that determination if, in the opinion of the responsible Minister, the project is in the national or regional interest.
Report — rejection of conditions
127. (1) Within 30 days after a decision is made under subparagraph 125(a)(ii), or within any other period that may be agreed on between the Board and the responsible Minister, the Board must reconsider, in light of that Minister’s reasons, the terms and conditions that the panel had recommended, make any changes it considers appropriate and submit a written report to that Minister, which it must make public, containing terms and conditions that it recommends should apply in respect of the project.
Report — rejection of determination
(2) Within 30 days after a decision is made under paragraph 126(b), or within any other period that may be agreed on between the Board and the responsible Minister, the Board must submit a written report to that Minister, which it must make public, containing terms and conditions that it recommends should apply in respect of the project.
Minister’s decision — terms and conditions
(3) The responsible Minister must, within 120 days after receiving a report made under subsection (1) or (2), in respect of each recommended term or condition in that report either
(a) accept it; or
(b) reject it or vary it in any manner that that Minister considers appropriate if, alone or combined with other terms or conditions,
(i) it is insufficient, or more onerous than necessary, to adequately mitigate the adverse ecosystemic and socio-economic impacts of the project, or
(ii) it is so onerous that it would undermine the viability of the project that is in the national or regional interest.
Additional terms and conditions
(4) In exercising the powers and performing the duties and functions under subsection (3), the responsible Minister may impose additional terms and conditions in order to adequately mitigate the adverse ecosystemic and socio-economic impacts of the project.
Socio-economic terms and conditions
128. Despite paragraphs 125(a) and 127(3)(b), the responsible Minister may reject, or vary in any manner that that Minister considers appropriate, any term or condition recommended by the panel or the Board that is related to the socio-economic impacts of the project and that is not related to its ecosystemic impacts.
Consultation
129. If a department or agency has indicated to the responsible Minister that the project involves an interest within their jurisdiction, that Minister must consult with that department or agency before making any decision under section 125 or 126, subsection 127(3) or (4) or section 128.
Approval of Governor in Council
130. Any decision of the responsible Minister made under subparagraph 125(a)(i), paragraph 125(b) or 126(a), subsection 127(3) or (4) or section 128 in relation to a project referred to in subparagraph 94(1)(a)(i) requires the approval of the Governor in Council.
Notification by Minister
131. The responsible Minister must, as soon as practicable, notify the Board in writing of the terms and conditions, established in accordance with sections 125 to 130, that are to apply in respect of a project.
Project certificate
132. (1) Within 30 days after receiving the notice under section 131, the Board must issue a project certificate that sets out the terms and conditions contained in that notice.
Application of subsections 111(2) to (4)
(2) Subsections 111(2) to (4) apply in respect of the project certificate issued under subsection (1).
Extension of time limit
(3) If the responsible Minister is of the opinion that more time is needed for the Board to issue the project certificate, that Minister may extend the period referred to in subsection (1) by up to 45 days and must notify the proponent and the Board of the extension in writing.
Reconsideration of terms and conditions
(4) Sections 112 and 114 apply in respect of the review of the terms and conditions and the issuance of an amended project certificate, and in paragraph 112(6)(b) the reference to section 108 is a reference to section 128.
Location of impacts
133. The ecosystemic and socio-economic impacts of the project both inside and outside of the designated area must be taken into account for the purposes of sections 120 to 132.
Project Terms and Conditions
Compatibility
Prescribed standards
134. In exercising the powers and performing the duties and functions relating to terms and conditions that are to apply in respect of a project, the responsible Minister must not accept or impose terms and conditions that would be inconsistent with any standard established by any environmental or socio-economic Act of Parliament of general application or territorial law of general application or by any regulation of general application made under such an Act or law.
Monitoring Programs
Impacts of project
135. (1) The responsible Minister may, in establishing terms and conditions that are to apply in respect of a project, require the establishment of a monitoring program of the project’s ecosystemic and socio-economic impacts.
Responsibilities
(2) The Government of Canada, the Government of Nunavut, the Board and the proponent must each carry out any responsibilities assigned to them under the monitoring program.
Purpose of program
(3) The purpose of a monitoring program is to
(a) measure the impact of the project on the ecosystemic and socio-economic environments of the designated area;
(b) determine whether the project is carried out in accordance with the terms and conditions imposed under subsection 152(6) or set out in the original or amended project certificate;
(c) provide the information necessary for regulatory authorities to enforce the terms and conditions of licences, permits or other authorizations that they issue in relation to the project; and
(d) assess the accuracy of the predictions contained in the project impact statement.
Requirements of program
(4) A monitoring program must specify the elements to be monitored and may include the requirement that
(a) regulatory authorities and the proponent provide the Board with information respecting the activities relating to a project, its impacts and the implementation of any mitigative measures;
(b) the Board carry out periodic evaluations of the program; and
(c) the Board produce a report of the adequacy of the program, based on the information obtained under paragraph (b), and on the ecosystemic and socio-economic impacts of the project.
Other responsibilities
(5) For greater certainty, federal and territori- al ministers and departments or agencies must fulfil any other responsibilities respecting monitoring of projects and data collection imposed on them by or under any other Act of Parliament or territorial law.
No duplication of responsi- bilities
(6) There must be no duplication of responsibilities between those assigned to the Board under a monitoring program and those referred to in subsection (5).
Implementation
Duty — general
136. (1) Each federal or territorial minister, each department or agency and each municipality must, to the extent of their jurisdiction and authority to do so, implement the terms and conditions that are set out in an original or amended project certificate.
Limit to duty
(2) Nothing in subsection (1) requires the amendment of any Act of Parliament or territorial law or any regulation as defined in section 1.1.1 of the Agreement.
Duty — licences, etc.
137. (1) Each regulatory authority must, to the extent of its jurisdiction and authority to do so, incorporate the terms and conditions referred to in subsection 136(1) into any licence, permit or other authorization that it issues.
Other terms and conditions
(2) For greater certainty, a regulatory authority may impose, to the extent of its jurisdiction and authority to do so, terms and conditions that are in addition to, or more stringent than, those referred to in subsection 136(1) and subsection (1) does not prevent a regulatory authority from refusing to issue a permit, licence or other authorization.
Consultation
(3) A regulatory authority must consult the Board with a view to determining the most effective means of implementing the terms and conditions referred to in subsection (1) and may, for that purpose, send a draft licence, permit or other authorization to the Board in order to obtain its comments and recommendations.
Copy to Board and Commission
(4) A regulatory authority must send a copy of each licence, permit or other authorization referred to in subsection (1) to the Board and the Commission, unless the Board or the Commission, as the case may be, exempts that authority from the requirement to provide it with copies.
Validity of licence, etc.
(5) The validity of a licence, permit or other authorization is not to be challenged before a court on the grounds that a regulatory authority fettered its discretion or acted without jurisdiction by incorporating the terms and conditions referred to in subsection (1) into it.
Prevailing terms and conditions
138. Terms and conditions referred to in subsection 136(1) prevail over any conflicting terms and conditions set out in any decision of a regulatory authority.
Decision of independent regulatory agency
139. (1) If there is an inconsistency between the terms and conditions referred to in subsection 136(1) and those set out in a decision of an independent regulatory agency, that agency must communicate the reasons for the inconsistency to the responsible Minister, the Board and the Governor in Council.
Exception — prevailing terms and conditions
(2) Despite section 138, if there is a conflict between the terms and conditions referred to in subsection 136(1) and those set out in a decision of an independent regulatory agency, the terms and conditions set out in the decision of the independent regulatory agency prevail if
(a) the government does not have the power to amend the agency’s decision and the Governor in Council is of the opinion that the project is in the national or regional interest; or
(b) the government has the power to amend the agency’s decision and the Governor in Council is of the opinion that the project is in the national or regional interest and implementing the terms and conditions referred to in subsection 136(1) would undermine the viability of the project.
Amended certificate
(3) Within 45 days after the day on which a decision is made by the Governor in Council under paragraph (2)(a) or (b), the Board must issue an amended project certificate and the terms and conditions set out in the certificate must be consistent with those set out in the decision of the independent regulatory agency.
Non-application of subsections (2) and (3)
(4) For greater certainty, subsections (2) and (3) do not apply if the terms and conditions are varied under section 112 and, as a result, the conflict referred to in subsection (2) is resolved.
Definition
(5) For the purposes of this section, “decision of an independent regulatory agency” means a decision made by any body established under a federal or territorial law under a power conferred on it to regulate or to issue licences, permits or other authorizations if that body is not subject to specific direction or control by the Government of Canada or Government of Nunavut.
Interpretation
(6) A decision
(a) does not cease to be a decision of an independent regulatory agency solely because
(i) it is subject to general direction by the Government of Canada or the Government of Nunavut through the issuance of guidelines, regulations or directives, or
(ii) it is subject to the approval of, or may be varied or rescinded by, the Government of Canada or the Government of Nunavut; and
(b) ceases to be a decision of an independent regulatory agency if the Government in question varies it before reasons are communicated under subsection (1).
Inuit Impact and Benefit Agreements
140. Any Inuit Impact and Benefit Agreement entered into by a proponent and the designated Inuit organization under Article 26 of the Agreement must be consistent with the terms and conditions set out in an original or amended project certificate.
General Provisions
Modifications to Project During Assessment
Notice — proponent
141. (1) A proponent must, as soon as practicable, notify the Commission in writing of any significant modification to a project that is under assessment under this Part. The notice must include a description of the modification that is prepared in accordance with the by-laws and rules made under paragraph 17(1)(e).
New assessment
(2) On receipt of a notice under subsection (1), the assessment of the original project is terminated and an assessment of the modified project must be carried out under this Part as if the Commission had received a project proposal under section 76.
Consideration of previous assessment
(3) The person or body exercising powers or performing duties or functions under this Part in respect of the modified project must consider, and may rely on, any assessment activities carried out under this Part in respect of the original project.
Notice — authority assessing project
142. (1) If, in the exercise of its powers or the performance of its duties and functions under this Part, the Commission, the Board, a federal environmental assessment panel or a joint panel, as the case may be, determines that the proponent has made a significant modification to a project that is under assessment under this Part, it must, as soon as practicable, notify the proponent in writing of the requirement set out under subsection 141(1).
Termination of assessment
(2) If the proponent does not provide a notice under subsection 141(1) within 30 days after the day on which the notice was given under subsection (1), the assessment of the project is terminated.
Interpretation
(3) For greater certainty, the proponent may submit a project proposal in relation to the modified project in accordance with section 76.
Consideration of previous assessment
(4) The person or body exercising powers or performing duties or functions under this Part in respect of the modified project must consider, and may rely on, any assessment activities carried out under this Part in respect of the original project.
Requests During Assessment
Request — suspension
143. (1) The proponent may request in writing that the assessment of a project be suspended. The request may be made to any body exercising powers or performing duties or functions under this Part in respect of the project.
Suspension
(2) As soon as practicable after it receives a request under subsection (1) the body must suspend the assessment of the project. The body must set the date the suspension takes effect after taking into account the proponent’s comments in respect of the suspension.
Time not counted
(3) If the proponent requests a suspension under subsection (1), the period of the suspension does not count as part of any time limit set out in this Part.
Resumption or termination of review
(4) A proponent may request in writing that the assessment resume, and if such a request is not made within three years after the day on which it is suspended, the assessment of the project is terminated.
Request — termination
(5) The proponent may request in writing that the assessment of a project be terminated. The request may be made to any body exercising powers or performing duties or functions under this Part in respect of the project.
Termination of review
(6) The assessment of the project is terminated on the day on which a request under subsection (5) is received.
Interpretation
(7) For greater certainty, the proponent may submit a new project proposal in relation to a project whose assessment has been terminated under subsection (4) or (6), in accordance with section 76.
Consideration of previous assessment
(8) The person or body exercising powers or performing duties or functions under this Part in respect of the project to which the new project proposal relates must consider, and may rely on, any assessment activities carried out under this Part in respect of the project.
Additional information
144. (1) The Commission, the Board and any federal environmental assessment panel may require the proponent to provide any additional information that it considers necessary to carry out its review or screening or to determine the scope of a project, as the case may be.
Suspension
(2) If the proponent fails to provide material information required under subsection (1), the Commission, the Board or any federal environmental assessment panel may suspend its assessment activities until the proponent provides that information and must make the reasons for the suspension public if it does so.
Termination of assessment
(3) If a proponent does not provide the information referred to in subsection (2) within three years after the day on which the request was made, the assessment of the project is terminated.
Interpretation
(4) For greater certainty, the proponent may submit a new project proposal in relation to the project in accordance with section 76.
Consideration of previous assessment
(5) The person or body exercising powers or performing duties or functions under this Part in respect of the project to which the new project proposal relates must consider, and may rely on, any assessment activities carried out under this Part in respect of the project.
Modifications to Project After Assessment
Modification not significant
145. If the carrying out of a work or activity is a project within the meaning of subsection 2(1) and modifies a project that has been approved under this Part, that work or activity is, despite paragraphs 74(a) and (b), not subject to an assessment under this Part unless that work or activity is a significant modification to the original project.
Significant modification
146. (1) For greater certainty, if the work or activity referred to in section 145 is a significant modification to the original project, it is subject to an assessment under this Part.
Previous assessments
(2) Any person or body exercising powers or performing duties or functions under this Part in relation to the assessment of the modifying project must consider, and may rely on, any assessment carried out under this Part in relation to the original project.
Projects Not Carried Out
New assessment
147. (1) If a project is not commenced within five years after the day on which the project was approved under this Part, that project is subject to a new assessment under this Part.
Prohibition
(2) It is prohibited to carry out the project referred to in subsection (1) in whole or in part, but the proponent may submit a new project proposal in relation to it in accordance with section 76.
Consideration of previous assessment
(3) The person or body exercising powers or performing duties or functions under this Part in respect of the project referred to in subsection (1) must consider, and may rely on, any assessment activities carried out under this Part in respect of the project.
Consultations
Consultation — Minister
148. The responsible Minister must consult with the relevant regulatory authorities in respect of the establishment of terms and conditions, under this Part, that are to apply to the carrying out of a project.
Multiple Responsible Ministers
Joint exercise of powers, etc.
149. (1) Subject to subsection (2), if there is more than one responsible Minister in respect of a project, they must jointly exercise the powers and perform the duties and functions of the responsible Minister under this Part.
Subparagraph 94(1)(a)(i)
(2) If there is more than one responsible Minister in respect of a project and one or more of those Ministers are territorial ministers and one or more of those Ministers are fed- eral ministers, the reference to “responsible Minister” in subparagraph 94(1)(a)(i) is a reference to the responsible Minister or Ministers who are federal ministers and, if there is more than one federal minister, they must jointly make a decision under that subparagraph.
Coordination and transmission of documents
(3) In the circumstances described in subsection (1), a proponent, the Board, the federal environmental assessment panel or the joint panel, as the case may be, must send all documents and information that must be sent to the responsible Minister under this Part to the federal Minister and the federal Minister must, as soon as practicable, forward the documents and information to the responsible Ministers.
Notice of decisions
(4) The responsible Ministers must provide reasons for joint decisions made under subsection (1) or (2), and the federal Minister must perform the duties of the responsible Minister under subsection 200(4) in relation to those decisions.
Reasons for Decisions
Written reasons
150. Written reasons must be provided with respect to
(a) a decision under section 77 that a project is not in conformity with an applicable land use plan;
(b) a decision made under any of paragraphs 81(2)(a) and 82(2)(a), sections 93 to 95, 105 and 106, subsections 107(3) and (4) and 112(6) and (7), sections 125 and 126, subsections 127(3) and (4), 142(1), 144(2) and 152(6) and paragraph 155(1)(b);
(c) a decision under any of subsections 86(1), 99(1) and 118(1) that has the effect of expanding or restricting the scope of the project; and
(d) a determination in an original or amended report that is prepared by the Board, a federal environmental assessment panel or a joint panel under this Part, other than under subsection 152(4).
Special Cases
National Security
Non-application of this Part
151. The Minister of National Defence may, on an exceptional basis, make a decision to exempt from the application of this Part the carrying out of any work relating to an installation or facility, or the undertaking or carrying out of any activity, that constitutes a project within the meaning of subsection 2(1) and that is required for the purpose of national defence if that Minister certifies in the decision that, for reasons of confidentiality or urgency, an exemption is required in the interest of national security.
Emergency Situations
Non-application of this Part
152. (1) This Part does not apply in respect of any project that is carried out in response to
(a) a national emergency for which special temporary measures are taken under the Emergencies Act;
(b) an emergency if a federal or territorial minister who is authorized under any other Act of Parliament or any territorial law to declare a state of emergency, to take measures to prevent an emergency or to remedy or minimize its effects is of the opinion that an emergency exists; or
(c) an emergency if the federal Minister certifies that an emergency exists and that it is in the interest of ensuring the health or safety of an individual or the general public, or of protecting property or the environment that the project be carried out without delay.
Report — person or entity
(2) As soon as practicable after undertaking a project referred to in subsection (1), the person or entity carrying it out must submit a written report to the Commission, the Board and the federal Minister describing
(a) all of the works or activities that have been undertaken or carried out in response to the emergency referred to in paragraph (1)(a), (b) or (c), as the case may be; and
(b) any further works or activities required after the end of that emergency to complete the project or maintain a work referred to in paragraph (a).
Report — Commission
(3) After receiving a report under subsection (2), the Commission may submit a written report to the federal Minister that contains an assessment of the project’s conformity with any applicable land use plan.
Report — Board
(4) After receiving a report under subsection (2), the Board may submit a written report to the federal Minister with terms and conditions that it recommends, with reasons, should apply in respect of the project or any portion of it.
Additional information
(5) The person or entity must provide any additional information that the Commission or the Board considers necessary to prepare its report under subsection (3) or (4), as the case may be.
Terms and Conditions
(6) After receiving a report under subsection (2) and reports under subsections (3) and (4), if any, the federal Minister may impose terms and conditions on the carrying out of the works or activities referred to in paragraph (2)(b), in which case section 135 applies.
Prohibition
(7) It is prohibited to carry out any works or activities referred to in paragraph (2)(b), in whole or in part, in contravention of any term and condition imposed under subsection (6).
Community Resupply and Ship Movements
No screening
153. (1) The Board must not screen any project if, after determining the scope of the project under subsection 86(1), it is of the opinion that the project either has as its purpose the provision of normal community resupply or consists of individual ship movements not relating to another project.
Precision
(2) Sections 87 to 140 do not apply in respect of a project referred to in subsection (1).
Exploration, Developmental or Development Activities
Licences — Nunavut Water Board
154. (1) Despite paragraph 75(1)(b), the Nunavut Water Board may issue licences to use waters or deposit waste for an interim, short-term period under the Nunavut Waters and Nunavut Surface Rights Tribunal Act, in respect of exploration or developmental activities that relate directly to a project that is subject to a review under this Part.
Conditions
(2) Despite paragraph 74(b) and subject to paragraph 74(f) and to obtaining the licence referred to in subsection (1) and any other licence, permit or other authorization required by or under any other Act of Parliament or any territorial law and to complying with any other requirements set out in such an Act or law, the proponent may undertake or carry out activities described in subsection (1).
Non-renewal, etc.
(3) Licences referred to in subsection (1) are not to be renewed or amended and their period of validity is not to be extended if the responsible Minister has come to a decision under this Part that the project to which the activities relate either could be modified and an amended project proposal submitted to the Commission or is not to proceed.
Licences — regulatory authorities
155. (1) Despite paragraph 75(1)(b), a regulatory authority may issue a licence, permit or other authorization in respect of exploration or development activities that relate directly to a project that is subject to a review under this Part if
(a) each activity belongs to a class of exempt activities set out in items 1 to 6 of Schedule 12-1 to the Agreement or in Schedule 3 and does not belong to a class of non-exempt activities prescribed by regulation; or
(b) the activities may, in the Board’s opinion, proceed without such a review.
Conditions
(2) Despite paragraph 74(b) and subject to paragraph 74(f) and to obtaining any licence, permit or other authorization required by or under any other Act of Parliament or any territorial law and to complying with any other requirements set out in such an Act or law, the proponent may undertake or carry out activities described in subsection (1).
Non-renewal, etc.
(3) Licences, permits or other authorizations referred to in subsection (1) are not to be renewed or amended and their period of validity is not to be extended if the responsible Minister has come to a decision under this Part that the project to which the activities relate either could be modified and an amended project proposal submitted to the Commission or is not to proceed.
Transboundary Projects
Review by Commission
Application — entire project
156. (1) If a project is to be carried out partly outside the designated area, sections 76 and 80 apply in respect of the entire project.
Limitation
(2) Sections 77 to 79, 81, 82 and, subject to subsection (1), 85 apply only in respect of the portion of the project to be carried out inside the designated area.
Screening by Board
Application — entire project
157. (1) If a project is to be carried out partly outside the designated area, sections 86 to 98 apply, subject to subsection (2), in respect of the entire project.
Limitation — scope of project
(2) If the Board makes an inclusion under paragraph 86(1)(a) only in respect of works or activities to be undertaken or carried out entirely outside the designated area, subsection 86(3) and section 87 do not apply and the Board must screen the entire project.
Review
Board
Scope of project
158. (1) If the Board receives a project proposal under subparagraph 94(1)(a)(iii) or subsection 94(3), the Board must determine the scope of the project and the Board must
(a) include within the scope of the project, in addition to any work or activity identified in the project proposal, any other work or activity that it considers sufficiently related to the project to form part of it; and
(b) exclude from the scope of the project any work or activity identified in the project proposal that it considers insufficiently related to the project to form part of it.
Application — entire project
(2) Subject to subsections (3) to (5), subsections 99(2) and (3) and sections 100 to 114 apply in respect of the entire project.
Limitation — scope of project
(3) If the Board makes an inclusion under paragraph (1)(a) only in respect of works or activities to be undertaken or carried out entirely outside the designated area, subsection 99(3) and section 100 do not apply and the Board must review the entire project.
Limitation — Board report
(4) The responsible Minister may only exercise the powers and perform the duties and functions conferred on that Minister under sections 105 and 106 in relation to the parts of the Board’s report that are applicable to or affect the designated area.
Limitation — terms and conditions
(5) The Board and the responsible Minister may only exercise their powers and perform their duties and functions conferred under sections 107 and 108 in relation to terms and conditions that are applicable to or affect the designated area.
Agreement — coordination
159. (1) The Board may, with the approval of the federal Minister and after consultation with the responsible Minister, enter into an agreement with any authority having powers, duties or functions in relation to the review of the impacts of the portion of the project to be carried out outside the designated area in respect of the coordination of their reviews.
Government of foreign state, etc.
(2) The federal Minister and the Minister of Foreign Affairs may, after consultation with the Board and the responsible Minister, enter into an agreement referred to in subsection (1) if the authority is a government of a foreign state or of a subdivision of a foreign state, or any institution of such a government, or an international organization of states or any institution of such an organization.
Federal Environmental Assessment Panel or Joint Panel
Ministerial decision
160. (1) After receiving a project proposal under subparagraph 94(1)(a)(ii), the Minister of the Environment must either
(a) establish a federal environmental assessment panel; or
(b) after consultation with the federal Minister and the responsible Minister, enter into an agreement with any authority having powers, duties or functions in relation to the review of the impacts of the portion of the project to be carried out outside the designated area respecting a review of the entire project by a joint panel.
Agreement with foreign state, etc.
(2) The Minister of the Environment and the Minister of Foreign Affairs may, after consultation with the federal Minister and the responsible Minister, enter into an agreement referred to in paragraph (1)(b) if the authority is a government of a foreign state or of a subdivision of a foreign state, or any institution of such a government, or an international organization of states or any institution of such an organization.
Federal environmental assessment panel
161. (1) If the Minister of the Environment establishes a federal environmental assessment panel under paragraph 160(1)(a), that Minister must appoint the members of that panel, including a Chairperson.
Composition — aboriginal groups
(2) If a portion of the project is to be carried out in an area adjacent to the designated area that is used by at least one other aboriginal group, at least one quarter of the members of the federal environmental assessment panel, other than the Chairperson, must be appointed on the recommendation of that group or those groups and the organization referred to in paragraph (a) of the definition “designated Inuit organization” in subsection 2(1), in accordance with any agreement concluded between them.
Application — entire project
(3) Subsections 115(3) to (5) and, subject to subsections (4) to (6), sections 116 to 133 apply in respect of the entire project.
Limitation — scope of project
(4) If the Minister of the Environment makes an inclusion under paragraph 118(1)(a) only in respect of works or activities to be undertaken or carried out entirely outside the designated area, subsection 118(3) and section 119 do not apply and the federal environmental assessment panel must review the entire project.
Limitation — panel report
(5) The Board and the responsible Minister may only exercise their powers and perform their duties and functions under sections 124 to 126 in relation to the parts of the federal environmental assessment panel’s report that are applicable to or affect the designated area.
Limitation — terms and conditions
(6) The Board and the responsible Minister may only exercise their powers and perform their duties and functions under sections 127 and 128 in relation to terms and conditions that are applicable to or affect the designated area.
Joint panel
162. (1) If the Minister of the Environment enters into an agreement under paragraph 160(1)(b), subsections 161(2) to (6) apply in respect of the project.
Compatibility
(2) An agreement referred to in subsection (1) must be consistent with the subsections referred to in that subsection.
Members
(3) An agreement referred to in subsection (1) must include rules regarding the appointment of members to the joint panel and the composition of that panel.
Interpretation
(4) In subsections 161(2), (4) and (5) and in the provisions referred to in subsections 161(3) to (6), a reference to the federal environmental assessment panel is a reference to the joint panel.
Parks and Conservation Areas
Projects
Definition of “responsible authority”
163. In sections 164 to 170, “responsible authority” means, as the case may be,
(a) the Parks Canada Agency or any other federal or territorial authority having management and control of a park; or
(b) the Parks Canada Agency, in the case of a historic place that is designated under the Historic Sites and Monuments Act and administered by that Agency.
Project proposal
164. (1) The proponent of a project that is to be carried out, in whole or in part, within a park or a historic place that is designated under the Historic Sites and Monuments Act and administered by the Parks Canada Agency, located inside the designated area, must submit a project proposal to the responsible authority.
Contents
(2) A project proposal must contain a description of the project prepared in accord- ance with criteria established by the responsible authority.
Grouping of related projects
(3) A proponent who intends to undertake two or more projects that are so closely related that they can be considered to form a single project must submit a single project proposal in respect of those projects, which are deemed to be a single project for the purposes of this Act.
Notice
(4) The responsible authority must send the Commission a notice of receipt for the project proposal. That notice must contain the proponent’s name and a summary of the project that includes a description of its nature and an indication of where it is to be carried out.
Conformity with requirements
165. The responsible authority must determine if the project is in conformity with the requirements set out by or under any law for which it has responsibility.
Verification — screening
166. (1) If the responsible authority determines that the project is in conformity with the requirements set out by or under any law for which it has responsibility, it must verify whether the project is exempt from screening.
Exemption from screening
(2) A project is exempt from screening if each work or activity that comprises the project belongs to a class of exempt works or activities set out in items 1 to 6 of Schedule 12-1 to the Agreement or in Schedule 3 and does not belong to a class of non-exempt works or activities prescribed by regulation.
Authority may consult Board
(3) The responsible authority may request the Board’s opinion as to whether a particular project is exempt from screening.
Project not exempt from screening
167. If a project is not exempt from screening, the responsible authority must send the project proposal to the Board in order for it to conduct a screening.
Project exempt from screening
168. (1) If a project is exempt from screening and the responsible authority has concerns in respect of any cumulative ecosystemic and socio-economic impacts that could result from the impacts of the project combined with those of any other project that has been carried out, is being carried out or is likely to be carried out inside the designated area, or wholly or partly outside the designated area, it must send the project proposal to the Board in order for the Board to conduct a screening of the project.
No concerns — cumulative impacts
(2) If a project is exempt from screening and the responsible authority does not have concerns in respect of the cumulative impacts referred to in subsection (1), it must indicate in the decision that the assessment of the project has been completed and that the proponent may, subject to obtaining any licence, permit or other authorization required by or under any other Act of Parliament or any territorial law and complying with any other requirements set out in such an Act or law, carry out the project.
Location of impacts
(3) In exercising its powers and performing its duties and functions under subsections (1) and (2), the responsible authority must consider impacts both inside and outside of the designated area.
Time limit
169. (1) The responsible authority must exercise its powers and perform its duties and functions under sections 166 to 168 within 45 days after making a determination under section 165.
Time not counted — additional information
(2) Any time required for the proponent to provide information required under subsection 144(1) as modified by paragraph 170(a) does not count as part of the period referred to in subsection (1).
Application of certain provisions
170. Section 73, paragraphs 74(a) to (e) and (g), section 75, subsections 86(1) and (2), sections 87 to 98, subsections 99(1) and (2), sections 100 to 117, subsections 118(1) and (2) and sections 120 to 162 apply in respect of the project subject to the following:
(a) in those provisions, a reference to the Commission is a reference to the responsible authority;
(b) in paragraphs 74(a) and 75(1)(a) and subsections 141(2), 142(3), 143(7), 144(4), 147(2) and 156(1), the reference to section 76 is a reference to section 164;
(c) in paragraphs 74(d), 75(1)(d) and 150(a), a reference to section 77 is a reference to section 165, a reference to an applicable land use plan is a reference to the requirements set out by or under any law for which the responsible authority has responsibility and in paragraphs 74(d) and 75(1)(d), the reference respecting a minor variance or a ministerial exemption does not apply;
(d) in subsection 86(1), section 87 and paragraphs 92(3)(a) and 100(a), the references to section 79 and subsection 80(1) are, respectively, references to section 167 and subsection 168(1);
(e) if the Board makes an inclusion under paragraph 86(1)(a) or 99(1)(a), the Board must not proceed with the screening or the review, as the case may be, and the responsible authority must exercise its powers and perform its duties and functions under section 165 in relation to the entire project;
(f) in paragraph 92(3)(c), the day is the day on which the Board receives a decision from the responsible authority, by reason of paragraph (e), that comes to the conclusion referred to in section 167 or subsection 168(1);
(g) in paragraph 93(1)(a) and subsections 111(3) and 155(2), the reference respecting paragraph 74(f) does not apply;
(h) in section 98, the reference to sections 88 to 97 is a reference to those sections, taking into account any modifications made to them under this section;
(i) if the Minister of the Environment makes an inclusion under paragraph 118(1)(a), the federal environmental assessment panel must not proceed with the review and the responsible authority must exercise its powers and perform its duties and functions under section 165 in relation to the entire project;
(j) a federal environmental assessment panel must review the project in relation to which the scope has been determined if the Minister of the Environment has not made an inclusion under paragraph 118(1)(a) or if that Minister made an inclusion under that paragraph and the responsible authority, by reason of paragraph (i), comes to the conclusion referred to in section 167 or subsection 168(1);
(k) in subsection 132(2), the reference to subsections 111(2) to (4) is a reference to subsection 111(2), to subsection 111(3), as modified by paragraph (g), and to subsection 111(4);
(l) in subsection 139(3), the reference to paragraph 93(1)(a) is a reference to that paragraph as modified by paragraph (g);
(m) in paragraph 150(b), the reference to section 93 is a reference to that section as modified by paragraph (g) and the references to paragraphs 81(2)(a) and 82(2)(a) do not apply;
(n) in paragraph 150(c) and subsection 153(1), the reference to subsection 86(1) is a reference to that subsection as modified by paragraph (d);
(o) in subsection 152(3), the reference to any applicable land use plan is a reference to the requirements set out by or under any law for which the responsible authority has responsibility;
(p) in subsection 153(2), the reference to sections 87 to 140 is a reference to those sections, taking into account any modifications made to them under this section;
(q) in subsection 156(1), the reference to section 80 is a reference to section 168;
(r) in subsection 156(2), the reference to sections 77 to 79 is a reference to sections 165 to 167 and the references respecting sections 81, 82 and 85 do not apply;
(s) in subsection 157(1), the reference to sections 86 to 98 is a reference to paragraph (e), subsections 86(1) and (2) and sections 87 to 98, taking into account any modifications made to those provisions under this section;
(t) in subsection 157(2), the reference to subsection 86(3) is a reference to paragraph (e) and the reference to section 87 is a reference to that section as modified by paragraph (d);
(u) in subsection 158(2), the reference to subsection 99(3) is a reference to paragraph (e) and the reference to sections 100 to 114 is a reference to those sections, taking into account any modifications made to them under this section;
(v) in subsection 158(3), the reference to subsection 99(3) is a reference to paragraph (e) and the reference to section 100 is a reference to that section as modified by paragraph (d);
(w) in subsection 161(3), the reference to sections 116 to 133 is a reference to paragraphs (i) and (j), sections 116 and 117, subsections 118(1) and (2) and sections 120 to 133;
(x) in subsection 161(4), the references to subsection 118(3) and section 119 are, respectively, references to paragraphs (i) and (j); and
(y) in subsections 162(1) and (4), the references to subsections 161(3) and (4) are references to those subsections as modified by paragraphs (w) and (x).
Project partly outside park, etc.
171. If a project is to be carried out partly outside a park or a historic place designated under the Historic Sites and Monuments Act and administered by the Parks Canada Agency,
(a) sections 76, 80, 164 and 168 apply in respect of the entire project;
(b) sections 163 and 165 to 167 apply only in respect of the portion of the project to be carried out inside the park or historic place; and
(c) sections 77 to 79, 81, 82 and, subject to paragraph (a), 85 apply only in respect of the portion of the project that is to be carried out outside the park or historic place.
Projects inside certain conservation areas
172. Sections 73 to 162 apply in respect of a project to be carried out, in whole or in part, within a conservation area located inside the designated area, other than a historic place designated under the Historic Sites and Monuments Act and administered by the Parks Canada Agency.
Establishment, Abolition and Alteration of Area
Interpretation
Ministerial initiative
173. If a federal or territorial minister proposes an initiative referred to in subsection 174(1), a reference to a department or agency in subsections 174(1) and (3), 177(6) and 178(1) and (4), section 180 and paragraph 182(a) is a reference to that minister.
Proposal
Duty — department or agency
174. (1) The department or agency proposing an initiative whose purpose is to establish or abolish a park or a conservation area, in whole or in part inside the designated area, or to expand or reduce its area, in whole or in part within the designated area, must submit a proposal to the Commission.
Content of proposal
(2) The proposal must contain a description of the initiative prepared in accordance with the by-laws and rules made under paragraph 17(1)(e).
Notice
(3) The Commission must publish in its public registry a notice of receipt for the initiative. That notice must contain a summary of the initiative, including a description of its nature and an indication of where it is to be carried out, and the name of the department or agency.
Land Use Plan in Effect
Conformity with plan
175. (1) The Commission must determine if an initiative is in conformity with any land use plan that is applicable to the place where the initiative is to be carried out.
Multiple plans
(2) If different portions of the initiative are subject to different land use plans, the Commission must determine if each portion is in conformity with the land use plan applicable to it, and if one portion of the initiative is not in conformity with the land use plan applicable to it, the entire initiative is deemed not to be in conformity.
Initiative in conformity with plan
176. If the Commission determines that the initiative is in conformity with any applicable land use plan, it must send the proposal relating to the initiative to the Board in order for the Board to conduct a screening.
Initiative not in conformity with plan
177. (1) If the Commission determines that the initiative is not in conformity with an applicable land use plan, it must verify whether that land use plan authorizes it to grant a minor variance with respect to that initiative and whether the conditions set out in accordance with subsection 48(3), if any, are met.
Minor variance permitted
(2) If the land use plan authorizes the granting of a minor variance and if the conditions, if any, are met, the Commission may, within 20 days after its determination that the initiative is not in conformity with the plan,
(a) grant the variance, in which case it must send the proposal relating to the initiative to the Board in order for the Board to conduct a screening; or
(b) refuse to grant the variance.
Publication
(3) Before granting a minor variance under paragraph (2)(a), the Commission must make the proposed minor variance public and must do so in a manner designed to promote participation in its examination by the public.
Objection
(4) Any interested person may, within 10 days after the proposed minor variance is made public, indicate to the Commission, in writing, that the proposed minor variance should not be granted because
(a) the land use plan does not authorize the granting of the minor variance;
(b) the conditions subject to which a minor variance may be granted are not met; or
(c) the minor variance is not appropriate, in their opinion, for any other reason that they specify.
Reasons taken into account and public review
(5) The Commission may only grant a minor variance under paragraph (2)(a) after taking into account any reasons for which an interested person has indicated, under subsection (4), that it should not be granted and, if it considers it appropriate to do so, conducting a public review in accordance with the by-laws and rules made under section 17 and taking into account any submissions made during that review.
Extension of time limit
(6) If the Commission is of the opinion that more time is needed to make a decision under subsection (2), it may extend the period referred to in that subsection by up to 10 days and must notify the department or agency of the extension in writing.
Request for ministerial exemption
178. (1) If the Commission determines that the initiative is not in conformity with an applicable land use plan, the department or agency may request an exemption from the federal Minister or the territorial Minister, or both, taking into account their respective jurisdictions, within 60 days after
(a) that determination, if the land use plan does not authorize the granting of a minor variance or if it does and the conditions are not met; or
(b) the Commission’s decision to refuse to grant a minor variance.
Ministerial decision
(2) The Minister or Ministers, as the case may be, must, within 120 days after the day on which they receive a request under subsection (1), either
(a) grant the exemption, in which case the Commission must make the decision public and send the proposal relating to the initiative to the Board in order for the Board to conduct a screening; or
(b) refuse the exemption.
Consultation
(3) An exemption may only be granted after consultation with the Commission, the relevant regulatory authorities and the relevant departments or agencies that are not regulatory authorities.
Extension of time limit
(4) If any Minister referred to in subsection (1) is of the opinion that more time is needed to make a decision, that Minister may extend the period referred to in subsection (2) by up to 60 days and must notify the department or agency and the Commission of the extension in writing.
Time limit
179. (1) The Commission must exercise its powers and perform its duties and functions under sections 175 and 176 within 45 days after the day on which it receives the proposal in respect of the initiative.
Time not counted
(2) If the Commission determines that an initiative is not in conformity with an applicable land use plan, any time required for the exercise of powers or the performance of duties and functions relating to minor variances and ministerial exemptions does not count as part of the period referred to in subsection (1).
Time not counted — public review
(3) If the Commission conducts a public review under subsection 177(5), any time required to conduct it does not count as part of the period referred to in subsection 177(2).
Time not counted — additional information
180. Any time required for the department or agency to provide information required under subsection 144(1) as modified by paragraph 182(a) does not count as part of the periods referred to in subsections 177(2) and (4) and 179(1).
No Land Use Plan
Sending of proposal
181. If there is no applicable land use plan, the Commission must, within 10 days after the day on which it receives the proposal in respect of the initiative, send the proposal to the Board in order for the Board to conduct a screening.
Applicable Regime
Application of certain provisions
182. Sections 73, 75, 86, 88 to 99, 101 to 146, 148 to 150 and 156 to 162 apply in respect of the initiative, subject to the following:
(a) in those sections, a reference to a project is a reference to the initiative and a reference to a proponent is a reference to a department or agency;
(b) in paragraph 75(1)(a) and subsections 141(2), 142(3), 143(7), 144(4) and 156(1), the reference to section 76 is a reference to section 174;
(c) in paragraph 75(1)(d), the reference to section 77 is a reference to section 175 and the references to paragraphs 81(2)(a) and 82(2)(a) are, respectively, references to paragraphs 177(2)(a) and 178(2)(a);
(d) in subsection 86(1) and paragraph 92(3)(a), the reference to “section 79 or subsection 80(1)” is a reference to “section 176 or paragraph 177(2)(a) or 178(2)(a) or section 181”;
(e) in subsections 86(3), 99(3) and 118(3), the references to sections 77, 81 and 82 are, respectively, references to sections 175, 177 and 178;
(f) the Board must screen the initiative in relation to which it has determined the scope in the manner that it considers appropriate to the nature of the initiative if it makes no inclusion under paragraph 86(1)(a) or if it makes an inclusion under that paragraph and it receives a decision, by reason of subsection 86(3), as modified by paragraph (e), that the entire initiative is in conformity with any applicable land use plan, that a minor variance or a ministerial exemption has been granted in respect of it or that there is no land use plan applicable to it;
(g) in paragraph 92(3)(c) and subsection 157(2), the reference to subsection 86(3) is a reference to that subsection as modified by paragraph (e);
(h) in paragraph 93(1)(a) and subsection 111(3), the reference respecting paragraphs 74(f) and (g) does not apply;
(i) the Board must review the initiative in relation to which it has determined the scope if it makes no inclusion under paragraph 99(1)(a) or if it makes an inclusion under that paragraph and
(i) it receives a decision, by reason of subsection 99(3), as modified by paragraph (e), that the entire initiative is in conform- ity with any applicable land use plan, that a minor variance or a ministerial exemption has been granted in respect of it or that there is no land use plan applicable to it, and
(ii) following the new screening, it is determined under subparagraph 94(1)(a)(iv) that the Board must conduct the review of the initiative;
(j) in section 119, the reference to subsection 118(3) is a reference to that subsection as modified by paragraph (e);
(k) in paragraph 135(3)(b), the reference respecting subsection 152(6) does not apply;
(l) in subsection 139(3), the reference to paragraph 93(1)(a) is a reference to that paragraph as modified by paragraph (h);
(m) in paragraph 150(a), the reference to section 77 is a reference to section 175;
(n) in paragraph 150(b), the references to paragraphs 81(2)(a) and 82(2)(a) are, respectively, references to paragraphs 177(2)(a) and 178(2)(a), the reference to section 93 is a reference to that section as modified by paragraph (h), and the references to subsection 152(6) and paragraph 155(1)(b) do not apply;
(o) in paragraph 150(c), the reference to subsection 86(1) is a reference to that subsection as modified by paragraph (d);
(p) in paragraph 150(d), the reference respecting subsection 152(4) does not apply;
(q) in subsection 156(1), the reference to section 80 does not apply;
(r) in subsection 156(2), the reference respecting sections 77 to 79, 81, 82 and 85 is a reference to sections 175 to 178 and 181;
(s) in subsection 157(1), the reference to sections 86 to 98 is a reference to paragraph (f) and sections 86 and 88 to 98, taking into account any modifications made to those sections under this section;
(t) in subsection 157(2), the reference to section 87 is a reference to paragraph (f);
(u) in subsection 158(2), the reference to subsection 99(3) is a reference to that subsection as modified by paragraph (e), the reference to sections 100 to 114 is a reference to paragraph (i) and sections 101 to 114, taking into account any modifications made to those sections under this section;
(v) in subsection 158(3), the reference to subsection 99(3) is a reference to that subsection as modified by paragraph (e), and the reference to section 100 is a reference to paragraph (i);
(w) in subsection 161(3), the reference to sections 116 to 133 is a reference to those sections, taking into account any modifications made to those sections under this section;
(x) in subsection 161(4), the reference to subsection 118(3) is a reference to that subsection as modified by paragraph (e) and the reference to section 119 is a reference to that section as modified by paragraph (j); and
(y) in subsections 162(1) and (4), the references to subsections 161(3) and (4) are references to those subsections as modified by paragraphs (w) and (x).
Previous Work
Consideration
183. The person or body exercising powers or performing duties or functions under sections 174 to 182 may consider, and rely on, any information collected, or study or analysis carried out, in respect of the initiative by any department or agency so as to ensure efficiency and avoid duplication.
PART 4
REVIEW OF PROJECTS TO BE CARRIED OUT OUTSIDE THE DESIGNATED AREA
Initiative
184. In this Part, “project” includes an initiative whose purpose is to establish or abolish a park or a conservation area or to expand or reduce its area.
Review by Board
185. The Board may — at the request of the Government of Canada or the Government of Nunavut or, with the consent of both governments, of the designated Inuit organization — conduct a review of a project that is to be carried out entirely outside the designated area and may have significant adverse ecosystemic or socio-economic impacts inside the designated area.
Report
186. Within 45 days after the end of the Board’s review of a project, the Board must submit to the Government of Canada and the Government of Nunavut, and to the designated Inuit organization if the review was conducted at its request, a written report that contains
(a) its assessment of the project and the project’s ecosystemic and socio-economic impacts inside the designated area;
(b) its determination, based on the assessment referred to in paragraph (a), as to whether the project should or should not proceed; and
(c) if it determines that a project should proceed, any terms and conditions that it recommends should apply in respect of the project.
Follow-up
187. The Government of Canada and the Government of Nunavut must each take any action in response to the report that it considers appropriate in the circumstances.
Interpretation
188. For greater certainty, sections 185 to 187 do not limit the jurisdiction of any other authority having powers, duties or functions in relation to the review of the impacts of the project.
PART 5
GENERAL PROVISIONS
Interpretation
Initiative
189. (1) In this Part, in the case of an initiative referred to in subsection 174(1), a reference to a project is a reference to the initiative and a reference to a proponent is a reference to the department or agency — or, by application of section 173, the federal or territorial minister — proposing that initiative.
Definitions
(2) The following definitions apply in this Part.
“responsible authority”
« autorité compétente »
« autorité compétente »
“responsible authority” has the same meaning as in section 163.
“responsible Minister”
« ministre compétent »
« ministre compétent »
“responsible Minister” has the same meaning as in subsection 73(1).
Standing During Assessment
Standing — certain Indian bands
190. In the exercise of their powers and the performance of their duties and functions related to review under Parts 2 to 4, the Commission, the Board, any federal environmental assessment panel and any joint panel must accord full standing to the councils of the Fort Churchill Indian Band, the Northlands Indian Band, the Black Lake Indian Band, the Hatchet Lake Indian Band and the Fond du Lac Indian Band to make submissions respecting the interests of their respective bands in relation to the areas within the designated area that those bands have traditionally used and continue to use and those bodies must take those submissions into account.
Standing — Makivik
191. In the exercise of their powers and the performance of their duties and functions in relation to islands and marine areas of the Nunavut Settlement Area that are traditionally used and occupied by the Inuit of Northern Quebec, the Commission, the Board, any federal environmental assessment panel and any joint panel must accord full standing to Makivik to make submissions respecting the interests of the Inuit of northern Quebec and those bodies must take those submissions into account.
Coordination of Activities
Commission and Board
192. The Commission and the Board may coordinate their respective activities.
Nunavut Water Board
193. The Commission, any responsible authority, the Board, any federal environmental assessment panel and any joint panel must coordinate their respective activities relating to the review of a project requiring a licence under the Nunavut Waters and Nunavut Surface Rights Tribunal Act with those of the Nunavut Water Board so as to ensure efficiency and avoid duplication.
Similar institutions
194. The Commission, any responsible authority, the Board, any federal environmental assessment panel and any joint panel may coordinate their respective activities with those of bodies having similar powers, duties or functions in any area in or adjacent to the designated area.
Agreement — impacts outside designated area
195. (1) The Government of Canada and the Government of Nunavut must, with the assist- ance of the Board, use their best efforts to negotiate and enter into agreements with governments or relevant authorities in other jurisdictions for the purpose of ensuring collab- oration between the Board, any federal envi- ronmental assessment panel and those govern- ments or authorities, in respect of the review of projects that are to be carried out inside the designated area and that may have significant ecosystemic or socio-economic impacts outside the designated area.
Interpretation
(2) For greater certainty, nothing in any agreement entered into under subsection (1) has the effect of restricting the jurisdiction of the Board.
Advice regarding marine areas
196. The Commission and the Board may advise departments or agencies and make recommendations to them respecting marine areas, either individually or, as part of the Nunavut Marine Council referred to in section 15.4.1 of the Agreement, both acting jointly with the Nunavut Water Board and the Nunavut Wildlife Management Board, and the Government of Canada and the Government of Nunavut must consider that advice and those recommendations when making any decision that may affect those marine areas.
Information and Documents
Obtaining Information
Required information
197. (1) If a regulatory authority or a department or agency or municipality that is not a regulatory authority is in possession of specialist or expert information or knowledge, including traditional knowledge, it must, at the request of the Commission, a responsible authority, the Board, a federal environmental assessment panel, a joint panel or the responsible Minister, as the case may be, make that information or knowledge available to them if they require it to exercise their powers or perform their duties or functions.
Limitation — discretion
(2) Despite subsection (1), if a regulatory authority or a department or agency or municipality that is not a regulatory authority has a discretion under any other Act of Parliament or any territorial law to refuse to disclose the information or knowledge, they are not required to disclose it.
Exercise of discretion
(3) Any discretion referred to in subsection (2) must be exercised taking into account the objectives of the Agreement.
Limitation — restriction on disclosure
198. Despite any other provision of this Act, proponents, regulatory authorities and departments or agencies that are not regulatory authorities are not required to provide the Commission, a responsible authority, the Board, any federal environmental assessment panel, any joint panel, the responsible Minister or any person designated under section 209 with any information whose disclosure is restricted under any other Act of Parliament or any territorial law.
Use of Information
Limitation — use for exercising powers, etc.
199. The members and employees of the Commission or the Board, the employees of a responsible authority, the members of a federal environmental assessment panel or joint panel, the responsible Minister and any person designated under section 209 are prohibited from using any information received under this Act for any purpose other than exercising powers or performing duties and functions under this Act.
Communication of Information and Documents
Decisions and reports — Commission
200. (1) The Commission must provide
(a) the proponent, the Board and the regulatory authorities identified by the proponent with any decision that it makes under section 77, subsection 78(1), section 80, subsection 81(2), 85(1), 142(1) or 144(2), section 175 or subsection 177(2);
(b) in the case of a decision made under subsection 80(2), the regulatory authorities identified by the proponent with the project proposal; and
(c) the Board and the relevant regulatory authorities with any report submitted under subsection 152(3).
Decisions, reports and certificates — Board
(2) The Board must
(a) provide the proponent, the Commission and the regulatory authorities identified by the proponent with any decision that it makes under subsection 86(1), 99(1) or 142(1);
(b) provide the proponent and the regulatory authorities identified by the proponent with any original or revised report referred to in subsection 92(1), 104(1) or (3), 107(1) or (2) or 112(5) or paragraph 135(4)(c);
(c) if the responsible Minister is a territorial minister, provide the federal Minister with any report referred to in subsection 92(1);
(d) in the case of a decision made under paragraph 93(1)(a), or after issuing a certificate under subsection 111(1), 112(10) or 132(1), provide the regulatory authorities identified by the proponent with the project proposal;
(e) provide the proponent with every original or amended project certificate that it issues and provide a copy of that certificate to the regulatory authorities identified by the proponent;
(f) provide the proponent, the Minister of the Environment and the regulatory authorities identified by the proponent with the findings and conclusions referred to in section 124;
(g) provide the proponent, the Minister of the Environment and the regulatory authorities identified by the proponent with any report referred to in subsection 127(1) or (2);
(h) provide the proponent and the regulatory authorities identified by the proponent with any decision that it makes under subsection 144(2) or paragraph 155(1)(b); and
(i) provide the Commission and the relevant regulatory authorities with any report submitted under subsection 152(4).
Decisions and reports — panels
(3) Each federal environmental assessment panel must provide
(a) the proponent, the Commission and the regulatory authorities identified by the proponent with any decision made by the Minister of the Environment under subsection 118(1);
(b) the proponent and the regulatory author- ities identified by the proponent with any report submitted under subsection 123(1) and any decision that it makes under subsection 144(2); and
(c) the proponent, the Commission, the Board and the regulatory authorities identified by the proponent with any decision that it makes under subsection 142(1).
Decisions — Minister
(4) The responsible Minister must provide
(a) the proponent, the Board and the regulatory authorities identified by the proponent with any decision made by that Minister under subsection 93(1) or 94(1) or (3), section 95, 105 or 106 or subsection 107(3) or (4) or 112(6) or (7) and with any decision amended under subsection 139(3); and
(b) the proponent, the Board, the Minister of the Environment and the regulatory author- ities identified by the proponent with any decision made by the responsible Minister under section 125 or 126 or subsection 127(3) or (4).
Other decisions — Minister
(5) The federal Minister or the territorial Minister, or both, as the case may be, must provide
(a) the Commission with any request for a ministerial exemption submitted under subsection 82(1) or 178(1); and
(b) the proponent, the Commission, the Board and the regulatory authorities identified by the proponent with any decision made under subsection 82(2) or 178(2).
Decisions and reports — Minister
(6) The federal Minister must provide
(a) the relevant regulatory authorities with any report submitted under subsection 152(2); and
(b) the person or entity referred to in subsection 152(2), the Commission, the Board and the relevant regulatory authorities with any decision made by that Minister under subsection 152(6).
Decisions and reports — joint panel
(7) Each joint panel must provide
(a) the proponent, the authority referred to in paragraph 160(1)(b) and the regulatory authorities identified by the proponent with any report submitted under subsection 123(1); and
(b) the proponent, the Commission, the Board and the regulatory authorities identified by the proponent with any decision it makes under subsection 142(1).
Decisions and reports — responsible authority
(8) Each responsible authority must provide
(a) the Board and the relevant regulatory authorities with any report submitted under subsection 152(3);
(b) the proponent, the Commission, the Board and the regulatory authorities identified by the proponent with any decision that it makes under section 165, subsection 166(1) or section 168; and
(c) in the case of a decision made under subsection 168(2), the project proposal to the regulatory authorities identified by the proponent.
Interpretation
(9) For the purposes of paragraphs (2)(a) and (i), (3)(a) and (c), (6)(b) and (7)(b), in the case of a project referred to in subsection 164(1), a reference to the Commission is a reference to the responsible authority.
Public registry — Commission
201. (1) The Commission must maintain a public registry that is made accessible to the public via the Internet, and the Commission must include, as soon as practicable, the following in that registry:
(a) reports referred to in paragraph 14(b), section 53 and subsections 61(1), 152(2) and (3) and 227(2);
(b) by-laws and rules established under subsection 17(1);
(c) any draft land use plan prepared under section 49;
(d) comments received under subsection 50(2);
(e) notices referred to in subsections 51(2), 76(4), 141(1), 142(1), 164(4) and 174(3);
(f) decisions made under subsections 54(1) and (3) and 62(1) and (3), section 77, subsection 78(1), section 80, subsections 81(2), 82(2), 85(1), 144(2) and 152(6), section 175 and subsections 177(2) and 178(2);
(g) land use plans approved under subsection 55(1);
(h) recommendations received under section 56;
(i) proposals for amendment of a land use plan made under subsections 59(1) and (3);
(j) amendments to a land use plan approved under subsections 62(1) and (3);
(k) proposed minor variances referred to in subsection 81(3);
(l) reasons referred to in subsections 81(4) and 177(4);
(m) requests referred to in subsections 82(1), 143(1), (4) and (5), 144(1) and 178(1); and
(n) any additional information submitted under subsection 144(1).
Limited effect
(2) Including any document in the registry is insufficient to discharge the relevant authority’s duty to make it public or to exercise a power to do so, as the case may be.
Public registry — Board
202. (1) The Board must maintain a public registry that is made accessible to the public via the Internet, and the Board must include, as soon as practicable, the following in that registry:
(a) by-laws and rules established under subsection 26(1);
(b) project proposals received under section 79, subsection 80(1), section 167 and subsection 168(1);
(c) decisions made by the Board and the responsible Minister under Part 3;
(d) original and revised reports referred to in subsections 92(1), 104(1) and (3), 107(1) and (2), 112(5), 123(1) and 127(1) and (2), paragraph 135(4)(c), subsections 152(2) and (4) and section 186;
(e) guidelines sent under subsections 101(5) and 120(6);
(f) impact statements submitted under subsections 101(6) and 120(7);
(g) notices given under subsection 102(2), section 110, subsection 121(2) and section 131;
(h) any original or amended project certificate issued by the Board;
(i) any terms of reference for a federal environmental assessment panel or a joint panel fixed under section 117;
(j) copies of any findings and conclusions provided under section 124;
(k) notices given by the Board, a federal environmental assessment panel or a joint panel under subsection 142(1);
(l) any request referred to in subsections 143(1), (4) and (5) and 144(1);
(m) any additional information submitted under subsection 144(1);
(n) reports submitted by a responsible authority under subsection 152(3), by application of section 170;
(o) decisions made under subsection 152(6);
(p) decisions made under section 165, subsection 166(1) and section 168; and
(q) agreements referred to in subsection 230(3).
Limited effect
(2) Including any document in the registry is insufficient to discharge the relevant authority’s duty to make it public or to exercise a power to do so, as the case may be.
Joint registry
203. The Commission and the Board may agree to maintain a joint public registry in accordance with the requirements of sections 201 and 202.
Limitation
204. (1) Despite any other provision of this Act, a member or employee of the Commission or the Board, an employee of a responsible authority, a member of a federal environmental assessment panel or joint panel, the responsible Minister and any person designated under section 209 may only disclose, in the exercise of their powers and the performance of their duties and functions under this Act, a document, part of a document or information, including by placing it in a public registry, if
(a) it has otherwise been made publicly available; or
(b) its disclosure
(i) would have been made in accordance with the Access to Information Act if a request had been made in respect of that document under that Act at the time the document came under their control under this Act, including any document that would be disclosed in the public interest under subsection 20(6) of the Access to Information Act,
(ii) is not prohibited under any other Act of Parliament or territorial law, and
(iii) would not contravene an agreement that a document, part of a document or information, provided to a person or body exercising powers or performing duties or functions under this Act, is confidential and must be treated accordingly.
Application of certain provisions
(2) Sections 27, 28 and 44 of the Access to Information Act apply in respect of any information described in subsection 27(1) of that Act that a person referred to in subsection (1) intends to disclose, with any modifications that the circumstances require, including the following:
(a) the information is deemed to be a record that the head of a government institution intends to disclose; and
(b) any reference to the person who requested access is to be disregarded.
Prevention of unauthorized disclosure
205. Persons referred to in subsection 204(1) must take all necessary precautions to prevent the disclosure of any document, part of a document or information that they are not permitted to disclose under that subsection.
Exercise of discretion
206. The Commission and the Board must take into account the objectives of the Agreement when exercising any discretion relating to the disclosure of information they have under any Act of Parliament.
Rights Preserved
Approval or amendment during assessment
207. (1) The approval of a land use plan under subsection 55(1), or its amendment under subsection 62(1) or (3), after a project proposal has been submitted in accordance with section 76 is not to be taken into account in the assessment of a project under Part 3 or for the purposes of paragraphs 14(a) and 74(f), but it must be taken into account for the purposes of subsection 69(4).
Approval or amendment after assessment
(2) An approval or amendment referred to in subsection (1) does not apply in respect of a project that was approved under Part 3 before that approval or amendment and is not to be taken into account for the purposes of paragraphs 14(a) and 74(f), but it must be taken into account for the purposes of subsection 69(4). For greater certainty, such a project is not subject to a new assessment under that Part.
Stoppage, etc. — less than five years
208. (1) Despite paragraphs 74(a) and (b), the following projects are not subject to an assessment under Part 3:
(a) a project that was approved under that Part, was commenced and then stopped or shut down for a period of less than five years; and
(b) the rebuilding of a work that has been closed for a period of less than five years if it relates to a project that was approved under that Part and lawfully carried out.
Deeming — paragraph (1)(b)
(2) Any decision made under subsection 80(2) or paragraph 93(1)(a), or an original or amended project certificate that was issued, in respect of the original project referred to in paragraph (1)(b) is deemed to have been made or issued, as the case may be, in relation to the rebuilding of the work.
Interpretation — paragraph (1)(a)
(3) For greater certainty, any decision made under subsection 80(2) or paragraph 93(1)(a), or an original or amended project certificate that was issued, in respect of the project referred to in paragraph (1)(a) remains valid.
Approval or amendment after authorization
(4) The approval of a land use plan under subsection 55(1), or its amendment under subsection 62(1) or (3), after the approval of the project referred to in paragraph (1)(a) or the original project referred to in paragraph (1)(b) does not apply in respect of the project referred to in paragraph (1)(a) or the rebuilding of the work, as the case may be, is not to be taken into account for the purposes of paragraphs 14(a) and 74(f), but it must be taken into account for the purposes of subsection 69(4).
Stoppage, etc. — five years or more
(5) It is prohibited to carry out a project or rebuild a work, in whole or in part, if the period of stoppage or closure is five years or more.
New project proposal
(6) A proponent may submit a new project proposal in relation to a project or the rebuilding of a work referred to in subsection (5) in accordance with section 76 and the project to which any such proposal relates is deemed to be in conformity with any applicable land use plan for the purposes of section 77.
Approval or amendment after authorization
(7) The approval of a land use plan under subsection 55(1), or its amendment under subsection 62(1) or (3), after the approval of the project referred to in subsection (5) or the original project to which the work referred to in subsection (5) relates, does not apply in respect of the project to which the project proposal referred to in subsection (6) relates, is not to be taken into account for the purposes of paragraphs 14(a) and 74(f), but it must be taken into account for the purposes of subsection 69(4).
Previous assessments
(8) If a work or an activity is not exempt from a new assessment under subsection (1), any person or body exercising powers or performing duties or functions under Part 3 must consider, and may rely on, any assessment activities carried out under that Part in respect of the original project.
Administration and Enforcement
Designation
Designation
209. The federal Minister may designate any employee, or class of employees, of a department or agency to exercise powers relating to verifying compliance or preventing non-compliance with this Act or orders made under section 214.
Powers
Authority to enter
210. (1) A person who is designated to verify compliance or prevent non-compliance with this Act or orders made under section 214 may, for those purposes, enter a place in which they have reasonable grounds to believe that a project is being carried out or a document or any thing relating to a project is located.
Powers on entry
(2) The designated person may, for the purposes referred to in subsection (1),
(a) examine anything in the place;
(b) use any means of communication in the place or cause it to be used;
(c) use any computer system in the place, or cause it to be used, to examine data contained in or available to that system;
(d) prepare a document, or cause one to be prepared, based on the data;
(e) use any copying equipment in the place, or cause it to be used;
(f) remove any thing from the place for examination or copying;
(g) take photographs and make recordings or sketches;
(h) order the owner or person in charge of the place or any person at the place to establish their identity to the designated person’s satisfaction or to stop or start an activity;
(i) order the owner or person having possession, care or control of any thing in the place to not move it, or to restrict its movement, for as long as, in the designated person’s opinion, is necessary;
(j) direct any person to put any machinery, vehicle or equipment in the place into operation or to cease operating it; and
(k) prohibit or limit access to all or part of the place.
Certificate
(3) The federal Minister must provide every designated person with a certificate of designation. On entering any place, that person must, if so requested, produce the certificate to the occupant or person in charge of the place.
Duty to assist
(4) The owner or person in charge of the place and every person in the place must give all assistance that is reasonably required to enable the designated person to verify compliance or prevent non-compliance with this Act or orders made under section 214 and must provide any documents, data or information that are reasonably required for that purpose.
Warrant for dwelling-house
211. (1) If the place referred to in subsection 210(1) is a dwelling-house, the designated person may only enter it with the occupant’s consent or under the authority of a warrant issued under subsection (2).
Authority to issue warrant
(2) On ex parte application, a justice of the peace may issue a warrant authorizing the designated person who is named in it to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice of the peace is satisfied by information on oath that
(a) the dwelling-house is a place referred to in subsection 210(1);
(b) entry to the dwelling-house is necessary for the purpose of verifying compliance or preventing non-compliance with this Act or orders made under section 214; and
(c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused or that consent to entry cannot be obtained from the occupant.
Entering private property
212. (1) For the purpose of gaining entry to a place referred to in subsection 210(1), a designated person may enter and pass through private property. For greater certainty, no person has a right to object to that use of the property and no warrant is required for the entry, unless the property is a dwelling-house.
Person accompanying designated person
(2) A person may, at the designated person’s request, accompany the designated person to assist them in gaining entry to the place referred to in subsection 210(1) and is not liable for doing so.
Use of force
213. In executing a warrant to enter a dwelling-house, a designated person must not use force unless the use of force has been specifically authorized in the warrant and the designated person is accompanied by a peace officer.
Orders
Measures required
214. (1) If a person designated to verify compliance or prevent non-compliance with this Act believes on reasonable grounds that there is a contravention of this Act, they may, among other things, order a person or entity to
(a) stop doing something that is in contravention of this Act or cause it to be stopped; or
(b) take any measure that the designated person considers necessary in order for the person or entity to comply with this Act or to mitigate the effects of the contravention.
Notice
(2) The order must be provided in the form of a written notice and must include
(a) a statement of the reasons for the order; and
(b) the time and manner in which the order must be carried out.
Statutory Instruments Act
(3) The orders are not statutory instruments for the purposes of the Statutory Instruments Act.
Coordination
Activities — designated persons
215. A person who is designated to verify compliance or prevent non-compliance with this Act or orders made under section 214 must coordinate their activities with those of any person designated for the purposes of verifying compliance or preventing non-compliance with any other Act of Parliament or territorial law so as to ensure efficiency and avoid duplication.
Injunction
Court — powers
216. (1) If, on the application of the responsible Minister, it appears to a court of competent jurisdiction that a person has done, is about to do or is likely to do any act constituting or directed toward a contravention of this Act, the court may issue an injunction ordering the person or entity that is named in the application to
(a) refrain from doing an act that, in the opinion of the court, may constitute or be directed toward a contravention of this Act; or
(b) do an act that, in the opinion of the court, may prevent a contravention of this Act.
Notice
(2) At least 48 hours before an injunction is issued under subsection (1), notice of the application must be given to persons named in the application, unless the urgency of the situation is such that the delay involved in giving the notice would not be in the public interest.
Prohibitions, Offences and Punishment
Obstruction
217. It is prohibited to knowingly obstruct or hinder a designated person who is exercising their powers or performing their duties and functions under this Act.
False statements or information
218. It is prohibited to knowingly make a false or misleading statement or knowingly provide false or misleading information in connection with any matter under this Act to any person who is exercising their powers or performing their duties and functions under this Act.
Offence and punishment
219. (1) Any person who contravenes section 74, subsection 147(2), 152(7) or 208(5) or an order made under paragraph 214(1)(a) or (b) is guilty of an offence punishable on summary conviction and is liable to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both.
False statements or information
(2) Any person who contravenes section 217 or 218 is guilty of an offence punishable on summary conviction and is liable to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both.
Continuing offences
(3) If an offence under subsection (1) is committed or continued on more than one day, it constitutes a separate offence for each day on which it is committed or continued.
Defence
(4) A person may not be convicted of an offence under subsection (1) if they establish that they exercised due diligence to prevent the commission of the offence.
Judicial Matters
Court Jurisdiction
Judicial review — concurrent jurisdiction
220. Despite the exclusive jurisdiction referred to in section 18 of the Federal Courts Act, the Attorney General of Canada, the Attorney General of Nunavut or anyone directly affected by the matter in respect of which relief is sought may make an application for judicial review to the Nunavut Court of Justice for any relief against the Commission or the Board by way of an injunction or declaration or by way of an order in the nature of certiorari, mandamus, quo warranto or prohibition.
Court reference
221. The Board or the Commission may refer a question of law or jurisdiction arising in relation to its powers, duties and functions under this Act to the Nunavut Court of Justice.
Standing
222. The designated Inuit organization may apply to a court of competent jurisdiction for
(a) a determination of whether any appli- cable requirement of an applicable land use plan has been implemented under section 69 and, if not, for any order that the Court considers necessary in the circumstances;
(b) a determination of whether a project is, or has been, carried out in accordance with the requirements of paragraph 74(f) and, if not, for any order that the Court considers necessary in the circumstances;
(c) a determination of whether a project is, or has been, carried out in accordance with the terms and conditions set out in the original or amended project certificate and, if not, for any order that the Court considers necessary in the circumstances;
(d) a determination of whether any term or condition referred to in paragraph (c) has been implemented under section 136 or 137 and, if not, for any order that the Court considers necessary in the circumstances;
(e) a determination of whether a project is, is likely to be or has been carried out in accordance with the terms and conditions referred to in paragraph (c) that have been implemented under section 136 or 137 and, if not, for an order requiring any person or entity named in the application to
(i) refrain from doing an act that, in the opinion of the court, may constitute or be directed toward the breach of any of those terms or conditions, or
(ii) do an act that, in the opinion of the court, may prevent the breach of any of those terms or conditions;
(f) a determination of whether a project referred to paragraph 152(1)(a), (b) or (c) is, or has been, carried out in accordance with the terms and conditions imposed under subsection 152(6) and, if not, for any order that the Court considers necessary in the circumstances; or
(g) judicial review of any interim or final decision or order made under Part 3.
Decisions final
223. Unless an exemption has been granted under paragraph 82(2)(a), any decision made by the Commission regarding the conformity of a project with a land use plan is final and binding and, except for judicial review under the Federal Courts Act and under section 220, is not subject to appeal to or review by any court.
Immunity
Things done in good faith
224. No action lies against a member or employee of the Commission or the Board, a member of a federal environmental assessment panel or joint panel or a person designated under section 209 for anything done or omitted to be done in good faith in the exercise or performance, or purported exercise or perform- ance, of any power, duty or function under this Act.
Disclosure made in good faith
225. No action lies against the Crown, the Commission, the Board, members or employees of the Commission or the Board or members of a federal environmental assessment panel or joint panel for the disclosure in good faith of any document, any part of a document or information under this Act, including by making it available in the public registries, or for any consequences that flow from that disclosure or for the failure to give any notice required under section 27 or 28 of the Access to Information Act if reasonable care is taken to give the required notice.
Time Limits
Authority, etc.
226. The failure of the Commission, a responsible authority, the Board, any federal environmental assessment panel, any joint panel or a responsible Minister to exercise a power or perform a duty or function within a period limited by this Act does not terminate their authority or invalidate any document prepared or submitted or any decision or action taken in the exercise or performance of such a power, duty or function.
General Monitoring
Plan
227. (1) The Government of Canada and the Government of Nunavut must, in cooperation with the Commission, develop a plan for the general monitoring of the long-term state and health of the ecosystemic and socio-economic environment of the designated area and must direct and coordinate that general monitoring and the collection of information relating to it.
Commission
(2) The Commission must, in accordance with the plan developed under subsection (1), collate information provided by industry, departments or agencies and others and prepare periodic reports on the ecosystemic and socio-economic environment of the designated area. The Commission must use that information in the exercise of its powers and the performance of its duties and functions under this Act.
Regulations and Orders
Regulations
228. (1) The Governor in Council may, on the recommendation of the federal Minister after close consultation by that Minister with the territorial Minister, the designated Inuit organization, the Commission and the Board, make regulations for carrying out the purposes and provisions of this Act and, in particular, regulations
(a) prescribing what constitutes a conflict of interest for the purposes of subsections 34(1) and (2) and 115(3); and
(b) establishing a funding program to facilitate the participation of specified classes of persons or groups in reviews of projects by the Board, a federal environmental assessment panel or a joint panel.
Consent of Tunngavik
(2) The Governor in Council may, on the recommendation of the federal Minister, after consultation by that Minister with the territorial Minister, the Commission and the Board and with the consent of Tunngavik, make regulations prescribing
(a) for the purposes of the definition “proj- ect” in subsection 2(1), classes of excluded works or activities; and
(b) for the purposes of subsection 78(2), paragraph 155(1)(a) and subsection 166(2), classes of physical works and activities that are not exempt from screening.
Schedule 2
229. The federal Minister may, by order, amend Schedule 2 to add, delete or amend the name of a designated regulatory agency.
Schedule 3 — proposed agreement
230. (1) Before entering into an agreement under item 7 of Schedule 12-1 to the Agreement, the Board must notify the designated Inuit organization and either the federal Minister or the territorial Minister, as the case may be, in writing of the classes of physical works and activities that are the subject of the proposed agreement.
Comments
(2) The recipient of a notice referred to in subsection (1) may, within 120 days after receiving the notice, provide the Board with comments in writing on the proposed agreement.
Notice — agreement
(3) After taking into account any comments received under subsection (2), the Board must notify the designated Inuit organization and either the federal or the territorial Minister, as the case may be, in writing of the agreement, if any, that has been entered into.
Amendment to Schedule 3
(4) The federal Minister must, by order, amend Schedule 3 to add, delete or amend a description of any class of works or activities exempted from screening under an agreement referred to in subsection (3).
PART 6
TRANSITIONAL PROVISIONS
Members and employees
231. Members and employees of the Commission and the Board who occupy a position immediately before the coming into force of this section continue in that position as if they had been appointed or employed under this Act.
Policies, priorities and objectives regarding planning
232. Sections 40 to 45 do not apply in respect of policies, priorities, and broad and specific objectives regarding land use planning established, and planning variables identified, under Article 11 of the Agreement and in force on the day on which this section comes into force, but those sections apply in respect of any amendment to such a policy, priority, objective or variable after the coming into force of this section.
Land use plans
233. (1) Any land use plan approved under section 11.5.9 of the Agreement and in force on the day on which this section comes into force remains in force subject to the following rules:
(a) sections 47, 48 and 66 do not apply in respect of it and, for greater certainty, sections 49 to 58 do not apply in respect of it;
(b) it is taken into account for the purposes of sections 46, 68 to 70 and 72, Part 3, paragraph 222(d) and section 223; and
(c) sections 59 to 65 apply in respect of any amendment to it after the coming into force of this section.
Public Registry
(2) The Commission must include any land use plan referred to in subsection (1) in the public registry established under subsection 201(1).
Municipal plans
234. Sections 71 and 72 do not apply in respect of any municipal land use plan developed in accordance with Article 11 of the Agreement and in force on the day on which this section comes into force. Those sections apply in respect of any amendment to such a land use plan after the coming into force of this section.
Projects — assessment under Agreement
235. (1) This Act does not apply in respect of
(a) a project that is being assessed under the Agreement or is being, or has been, lawfully carried out on the day on which this section comes into force;
(b) a project that was approved under the Agreement before the day on which this section comes into force, was commenced and then stopped or shut down for a period of less than five years, calculated from that day;
(c) the rebuilding of a work that has been closed for a period of less than five years calculated from the day on which this section comes into force, if it relates to a project that was approved under the Agreement before that day and lawfully carried out; and
(d) a project that was approved under the Agreement before the day on which this section comes into force and commenced within five years of that day.
Exception — significant modification
(2) Despite subsection (1), if, after this section comes into force, there is a significant modification, within the meaning of section 145, to a project referred to in any of paragraphs (1)(a) to (d), this Act applies to that project.
Consequential Amendments
R.S., c. A-1
Access to Information Act
3. Schedule I to the Access to Information Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:
Nunavut Impact Review Board
Commission du Nunavut chargée de l’examen des répercussions
Nunavut Planning Commission
Commission d’aménagement du Nunavut
R.S., c. P-21
Privacy Act
4. The schedule to the Privacy Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:
Nunavut Impact Review Board
Commission du Nunavut chargée de l’examen des répercussions
Nunavut Planning Commission
Commission d’aménagement du Nunavut
2002, c. 10
Nunavut Waters and Nunavut Surface Rights Tribunal Act
5. The definitions “Nunavut Impact Review Board” and “Nunavut Planning Commission” in section 4 of the Nunavut Waters and Nunavut Surface Rights Tribunal Act are replaced by the following:
“Nunavut Impact Review Board”
« Commission d’examen des projets de développement »
« Commission d’examen des projets de développement »
“Nunavut Impact Review Board” means the Nunavut Impact Review Board referred to in section 18 of the Nunavut Planning and Project Assessment Act.
“Nunavut Planning Commission”
« Commission d’aménagement »
« Commission d’aménagement »
“Nunavut Planning Commission” means the Nunavut Planning Commission referred to in section 10 of the Nunavut Planning and Project Assessment Act.
6. Subsection 36(2) of the Act is replaced by the following:
Review by Nunavut Planning Commission
(2) In order to avoid unnecessary duplication and to ensure that projects are dealt with in a timely manner, the Board shall cooperate and coordinate its consideration of applications with the Nunavut Planning Commission’s review of projects under sections 76 to 85 of the Nunavut Planning and Project Assessment Act for conformity with any applicable land use plans approved under subsection 55(1) of that Act.
7. Subsection 37(1) of the Act is replaced by the following:
Screening and review of projects
37. (1) In order to avoid unnecessary duplication and to ensure that projects are dealt with in a timely manner, the Board shall cooperate and coordinate its consideration of applications with the Nunavut Impact Review Board or any federal environmental assessment panel or joint panel established under subsection 115(1) or paragraph 160(1)(a) or (b) of the Nunavut Planning and Project Assessment Act in relation to the screening of projects by that Board and the review of projects by that Board or panel.
8. Sections 38 and 39 of the Act are replaced by the following:
Restriction on powers
38. (1) The Board may not issue, renew or amend a licence to use waters or deposit waste in relation to a use or deposit, or appurtenant undertaking, that is a project within the meaning of subsection 2(1) of the Nunavut Planning and Project Assessment Act if
(a) the assessment of the project under Part 3 of that Act has not been completed;
(b) the assessment of the project has been terminated under subsection 141(2), 142(2), 143(4) or (6) or 144(3) of that Act;
(c) the Nunavut Planning Commission has determined, under section 77 of that Act, that the project is not in conformity with any applicable land use plan, and no minor variance or exemption has been granted in respect of the project under paragraph 81(2)(a) or 82(2)(a) of that Act, as the case may be;
(d) the responsible Minister, within the meaning of subsection 73(1) of that Act, has decided that the project could be modified and an amended project proposal submitted to the Nunavut Planning Commission, or that it is not to proceed; or
(e) the responsible authority, within the meaning of section 163 of that Act, has determined, under section 165 of that Act, that the project is not in conformity with the requirements set out by or under any law for which it has responsibility.
Exception
(2) Despite paragraph (1)(a), the Board may issue, renew or amend a licence in relation to exploration or developmental activities referred to in subsection 154(1) of the Nunavut Planning and Project Assessment Act or exploration or development activities referred to in paragraph 155(1)(a) or (b) of that Act.
Non-renewal, etc.
(3) Licences issued under subsection (2) must not be renewed or amended if the responsible Minister, as defined in subsection 73(1) of the Nunavut Planning and Project Assessment Act, has come to a decision under Part 3 of that Act that the project to which the activities in question relate either is not to proceed or could be modified and an amended project proposal submitted to the Commission or the responsible authority within the meaning of section 163 of that Act, as the case may be.
9. Subsection 70(3) of the Act is replaced by the following:
Terms and Conditions
(3) The Board shall, to the extent of its jurisdiction and authority under this Act to do so, incorporate the terms and conditions referred to in subsection 136(1) of the Nunavut Planning and Project Assessment Act in a licence that is issued in respect of the use of waters or deposit of waste or the appurtenant undertaking to which that use or deposit relates.
Coming into Force
Order in council
10. This Part comes into force on a day to be fixed by order of the Governor in Council.
PART 2
NORTHWEST TERRITORIES SURFACE RIGHTS BOARD ACT
Enactment of Act
Enactment
11. The Northwest Territories Surface Rights Board Act is enacted as follows:
An Act to establish the Northwest Territories Surface Rights Board and to make related and consequential amendments to other Acts
Preamble
Whereas the Gwich’in, Sahtu, Inuvialuit and Tlicho Agreements allow for the establishment by legislation of a regime for the determination of terms and conditions of access to Gwich’in lands, Sahtu lands and Tlicho lands, and the waters overlying those lands, and Inuvialuit lands, as well as the compensation to be paid in respect of that access;
Whereas, in addition, it is appropriate to establish a regime for the determination of terms and conditions of access to other land in the Northwest Territories and the compensation to be paid in respect of that access;
And whereas it is appropriate to establish, in accordance with the Agreements, a surface rights board as an institution of public government, whose purpose is to resolve matters in dispute relating to terms and conditions of access to lands and waters, primarily for a commercial purpose, and the compensation to be paid in respect of that access;
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 Northwest Territories Surface Rights Board Act.
INTERPRETATION
Definitions
2. (1) The following definitions apply in this Act.
“access order”
« ordonnance d’accès »
« ordonnance d’accès »
“access order” means an order made under any of sections 49 to 54, 62, 69 and 77.
“Agreement”
« accord »
« accord »
“Agreement” means the Gwich’in Agreement, the Inuvialuit Agreement, the Sahtu Agreement or the Tlicho Agreement, as the case may be.
“designated land”
« terres désignées »
« terres désignées »
“designated land” means Gwich’in lands, Inu- vialuit lands or Sahtu lands, as the case may be.
“designated organization”
« organisation désignée »
« organisation désignée »
“designated organization” means the Gwich’in Tribal Council, the Inuvialuit Regional Corporation or the designated Sahtu organization, as the case may be.
“entity”
« entité »
« entité »
“entity” includes a corporation, a partnership, association or any other unincorporated organization, an Aboriginal group or government, the Government of Canada, the Government of the Northwest Territories, and a department or agency of one of those governments.
“gas”
« gaz »
« gaz »
“gas” means natural gas and includes all substances, other than oil, that are produced in association with natural gas.
“Gwich’in Agreement”
« accord gwichin »
« accord gwichin »
“Gwich’in Agreement” means the Comprehensive Land Claim Agreement between Her Majesty the Queen in right of Canada and the Gwich’in as represented by the Gwich’in Tribal Council, signed on April 22, 1992 and approved, given effect and declared valid by the Gwich’in Land Claim Settlement Act, as that Agreement is amended from time to time in accordance with its provisions.
“Inuvialuit Agreement”
« accord inuvialuit »
« accord inuvialuit »
“Inuvialuit Agreement” means the Inuvialuit Final Agreement between the Committee for Original Peoples’ Entitlement representing the Inuvialuit of the Inuvialuit Settlement Region, within the meaning of that Agreement, and the Government of Canada, signed on June 5, 1984 and approved, given effect and declared valid by the Western Arctic (Inuvialuit) Claims Settlement Act, as that Agreement is amended from time to time in accordance with its provisions.
“Inuvialuit lands”
« terres inuvialuites »
« terres inuvialuites »
“Inuvialuit lands” means land in the Northwest Territories that has been provided to the Inuvialuit under the Inuvialuit Agreement.
“minerals”
« minéraux »
« minéraux »
“minerals” means
(a) precious and base metals; and
(b) any other non-living, naturally occurring substances, whether solid, liquid or gaseous, including coal, oil and gas but not water.
“Minister”
« ministre »
« ministre »
“Minister” means the Minister of Indian Affairs and Northern Development.
“non-designated land”
« terres non désignées »
« terres non désignées »
“non-designated land” means land in the Northwest Territories that is not designated land or Tlicho lands that is either owned by an individual or entity or owned by Her Majesty in right of Canada and occupied by an individual or entity. For greater certainty, it includes
(a) the lands described in 20.1.3(a) and (b) of the Gwich’in Agreement and in 21.1.3(a) and (b) of the Sahtu Agreement and Tlicho community lands; and
(b) lands under the administration and control of the Commissioner of the Northwest Territories that are occupied by an individual or entity.
“occupant”
« occupant »
« occupant »
“occupant” means, in respect of land, an individual or entity, other than the owner, whose consent is required under another Act of Parliament for the exercise of a right of access to the land by an individual or entity having a right to explore for, develop or produce minerals.
“oil”
« pétrole »
« pétrole »
“oil” means
(a) crude oil, regardless of gravity, produced at a well head in liquid form; and
(b) any other hydrocarbons, other than coal and gas, including hydrocarbons that may be extracted or recovered from deposits of oil sand, bituminous sand or oil shale or from any other type of deposits on the surface or subsurface.
“regulatory authority”
« autorité administrative »
« autorité administrative »
“regulatory authority” means a minister, a department or agency, a municipality, the Tlicho government, a Tlicho community government or any public body responsible — under another Act of Parliament, a territorial law or a Tlicho law — for issuing a licence, permit or other authorization.
“Sahtu Agreement”
« accord du Sahtu »
« accord du Sahtu »
“Sahtu Agreement” means the Comprehensive Land Claim Agreement between Her Majesty the Queen in right of Canada and the Sahtu Dene and Metis as represented by the Sahtu Tribal Council, signed on September 6, 1993 and approved, given effect and declared valid by the Sahtu Dene and Metis Land Claim Settlement Act, as that Agreement is amended from time to time in accordance with its provisions.
“settlement area”
« région désignée »
« région désignée »
“settlement area” means, as the case may be,
(a) the area described in appendix A to the Gwich’in Agreement;
(b) the portion of the Inuvialuit Settlement Region, as defined in section 2 of the Inuvialuit Agreement, that is located in the Northwest Territories; or
(c) the area described in appendix A to the Sahtu Agreement.
“territorial law”
« loi territoriale »
« loi territoriale »
“territorial law” means an ordinance of the Northwest Territories and any regulations made under an ordinance.
“Tlicho Agreement”
« accord tlicho »
« 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.
“wildlife”
« ressources fauniques »
« ressources fauniques »
“wildlife” means fauna living in a wild state, including fish, mammals and birds. It does not include reindeer.
Definitions — Agreements
(2) In this Act,
(a) “Gwich’in lands” has the same meaning as in 20.1.1 of the Gwich’in Agreement and “Gwich’in participant” means a participant as defined in 2.1.1 of that Agreement;
(b) “Inuvialuit” means the people referred to in the definition “Inuvialuit” in section 2 of the Inuvialuit Agreement;
(c) “designated Sahtu organization” and “Sahtu lands” have the same meaning as in 2.1.1 and 21.1.1, respectively, of the Sahtu Agreement and “Sahtu participant” means a participant as defined in 2.1.1 of that Agreement; and
(d) “Monfwi Gogha De Niitlee”, “Tlicho Citizen”, “Tlicho community”, “Tlicho community lands”,“Tlicho First Nation”, “Tlicho Government”, “Tlicho lands” and “Tlicho law” have the same meaning as in 1.1.1 of the Tlicho Agreement.
PRECEDENCE
Agreement prevails
3. In the event of any inconsistency or conflict between an Agreement and this Act, the Agreement prevails to the extent of the inconsistency or conflict.
APPLICATION
Geographical application
4. This Act applies to the Northwest Territories.
Binding on Her Majesty
5. This Act is binding on Her Majesty in right of Canada or a province.
GENERAL PROVISIONS
Delegation
6. The Minister may delegate, in writing, any of the Minister’s powers or functions under this Act — either generally or as otherwise provided in the instrument of delegation — to the minister of the Northwest Territories designated by the Commissioner of the Northwest Territories for the purposes of this section.
Review
7. (1) The Minister must review this Act with the representatives of any Aboriginal group that has entered into an agreement in relation to the Northwest Territories to determine whether this Act should be amended to implement any provision of the agreement if the agreement
(a) is a comprehensive land claim agreement, a self-government agreement, an agreement regarding the management and regulation of land and resources or governance, a transboundary agreement or a type of agreement that is specified in the regulations; and
(b) comes into force, in accordance with its provisions, either before or after the day on which this section comes into force.
Limitation
(2) For greater certainty, subsection (1) does not apply in respect of an agreement that is not final or an Agreement as defined in subsection 2(1).
Access subject to consent
8. (1) For greater certainty, unless otherwise provided in an Agreement or under this Act, an individual or entity is not permitted to enter, cross or remain on Gwich’in lands, Sahtu lands or Tlicho lands, or the waters overlying those lands, or Inuvialuit lands, without the consent of the applicable designated organization or the Tlicho Government, as the case may be.
Exceptions
(2) Subsection (1) does not apply to Gwich’in participants, Sahtu participants or Tlicho Citizens, in relation to Gwich’in lands, Sahtu lands or Tlicho lands, respectively, or to the waters overlying those lands, or to the Inuvialuit in relation to Inuvialuit lands.
Effect of order
(3) Neither the issuance of an order by the Northwest Territories Surface Rights Board nor any provision of such an order has the effect of exempting the individual or entity to whom the order is issued from any obligation, restriction or prohibition set out in an Agreement or imposed under an Act of Parliament or a territorial law.
ESTABLISHMENT AND ORGANIZATION OF THE NORTHWEST TERRITORIES SURFACE RIGHTS BOARD
Board Established
Establishment
9. (1) A board is established, to be known as the Northwest Territories Surface Rights Board, in this Act referred to as the “Board”.
Composition
(2) The Board is to consist of no fewer than five and no more than nine members, including the Chairperson.
Appointment by Minister
(3) The Chairperson and the other members of the Board are to be appointed by the Minister.
Odd number
(4) The Minister must make any appointments that are necessary to ensure that an odd number of members holds office at any time.
Purpose
10. (1) The purpose of the Board is to resolve matters in dispute relating to access to Gwich’in lands, Sahtu lands and Tlicho lands, and the waters overlying those lands, and Inuvialuit lands and non-designated land.
Jurisdiction generally
(2) To fulfil its purpose, the Board may, in accordance with this Act, make orders setting out the terms and conditions on which an individual or entity may access those lands and waters and the appropriate compensation to be paid in respect of the access.
Chairperson
11. (1) The Chairperson is the chief executive officer of the Board and exercises the powers and performs the functions set out in the Board’s bylaws.
Acting Chairperson
(2) The Board must designate a member who is to act as Chairperson in the event that the Chairperson is absent or becomes incapacitated or if their office becomes vacant.
Alternate members
12. (1) The Minister must appoint five alternate members.
Absence or incapacity
(2) If a member is absent or incapacitated or if their office is vacant, the alternate member who is subject to the same residency requirements as that member must perform the functions normally performed by that member, subject to the Board’s bylaws or, in the absence of an applicable provision in the bylaws, the direction of the Chairperson, and in doing so, is deemed to be a member.
Qualifications and residency requirements
13. (1) The Minister must appoint as members and alternate members individuals who, in the Minister’s opinion, have knowledge or experience that will assist the Board in fulfilling its purpose and who are residents of the Northwest Territories.
Aboriginal traditional knowledge
(2) For greater certainty, the knowledge and experience referred to in subsection (1) includes Aboriginal traditional knowledge and experience in relation to that knowledge.
Additional requirement — residency
(3) Among the individuals appointed as members and alternate members, at least one member and one alternate member must be residents of
(a) the area described in appendix A to the Gwich’in Agreement;
(b) Inuvik or the portion of the Inuvialuit Settlement Region, as defined in section 2 of the Inuvialuit Agreement, that is located in the Northwest Territories;
(c) the area described in appendix A to the Sahtu Agreement; and
(d) the Monfwi Gogha De Niitlee.
Additional requirement — knowledge
(4) Each individual appointed as a member or alternate member referred to in any of paragraphs (3)(a) to (d) must have, in the Minister’s opinion, considerable knowledge in respect of lands, the environment or Aboriginal traditional knowledge in relation to the appli- cable settlement area or the Monfwi Gogha De Niitlee, as the case may be.
Change of residence
14. (1) A member or alternate member who is of the opinion that they have ceased to meet the applicable residency requirements must advise the Minister and the Board without delay.
Notification
(2) If the Minister determines that a member or alternate member has ceased to meet the applicable residency requirements — regardless of whether the Minister has been so advised under subsection (1) — the Minister must send written notification to that member and their appointment is terminated as of the day on which the member receives the written notification or the day on which they are deemed to have received it, which is 30 days after it is sent, whichever is earlier.
Acting after ceasing to be resident
(3) If a member ceases to meet the applicable residency requirements before they have made a decision in a matter for which a hearing is held, the member may, with the consent of the parties to the hearing, continue to perform their functions as a member only in relation to that matter until the hearing is concluded and a decision is made. For the purpose of the appointment of a replacement, their office is deemed to be vacant as soon as their appointment is terminated under subsection (2).
Term of office
15. (1) Members and alternate members are appointed to hold office for a term of five years.
Acting after expiry of term
(2) If the term of a member expires before they have made a decision in a matter for which a hearing is held, the member may, in accordance with the Board’s bylaws or, in the absence of an applicable provision in the bylaws, the direction of the Chairperson, continue to perform their functions as a member only in relation to that matter until the hearing is concluded and a decision is made. For the purpose of the appointment of a replacement, their office is deemed to be vacant as soon as their term expires.
Removal
16. Members and alternate members hold office during good behaviour and may be removed by the Minister for cause.
Reappointment
17. Members and alternate members are eligible to be reappointed to the Board for a second term in the same or in another capacity, but they are not, in the three years following the completion of their second consecutive term, eligible for appointment in any capacity.
Remuneration and expenses — members
18. (1) Members — including the Chairperson — are to receive the remuneration that is determined by the Minister for the performance of their functions and are to be paid the travel and living expenses incurred by them while they are absent from their ordinary place of residence in the course of performing their functions that are consistent with Treasury Board directives for public servants.
Alternate members
(2) Alternate members are not entitled to receive any remuneration unless they attend a meeting, training session or other event at the request of the Chairperson, in which case they are to receive the remuneration that is determined by the Minister, and are to be paid the travel and living expenses incurred by them while they are absent from their ordinary place of residence that are consistent with Treasury Board directives for public servants.
Staff
19. The Board may employ any employees and engage the services of any agents, advisers and experts that are necessary for the proper conduct of its business and may fix the terms and conditions of their employment or engagement and pay their remuneration.
Workers’ compensation
20. Members, alternate members who attend meetings, training sessions or other events at the request of the Chairperson and employees of the Board are deemed to be employees for the purposes of the Government Employees Compensation Act and to be employed in the federal public administration for the purposes of any regulations made under section 9 of the Aeronautics Act.
Conflict of interest
21. (1) A member, employee of the Board, agent, adviser or expert must not perform their functions if doing so would place them in a conflict of interest.
Status or entitlement under Agreement
(2) An individual is not placed in a conflict of interest solely because of any status or entitlement conferred on them under an Agreement or because they have an interest in land in the Northwest Territories.
Acts done in good faith
22. No action lies against a member or an employee of the Board for anything done or omitted to be done in good faith in the performance, or purported performance, of any function under this Act.
Head Office and Meetings
Head office
23. The head office of the Board is to be at Yellowknife or at any other location in the Northwest Territories that the Governor in Council designates.
Meetings
24. (1) The meetings of the Board may be held at the times and in the locations in the Northwest Territories that the Board considers necessary or desirable for the proper conduct of its business.
Participation by telephone or other means of communication
(2) Subject to the Board’s bylaws or, in the absence of an applicable provision in the bylaws, the direction of the Chairperson, a member may participate in a meeting by any means of communication — including by telephone — that permits all participants to communicate with one another, and a member so participating is deemed for the purposes of this Act to be present at the meeting.
Bylaws
Powers of Board
25. The Board may make bylaws respecting the powers and functions of the Chairperson and the conduct and management of its internal administrative affairs, including bylaws respecting
(a) the circumstances in which an alternate member is to perform the functions of a member who is absent or incapacitated or whose office is vacant;
(b) in the case of a member whose term has expired, their ability to continue to perform their functions in relation to a matter for which a hearing is held;
(c) participation in meetings of the Board by means of telephone or other means of communication;
(d) the assignment of members to panels of the Board; and
(e) the designation of individuals who are authorized to certify copies of documents issued by the Board.
Status and General Powers
Status
26. The Board is an institution of public government but is not an agent of Her Majesty.
Property and contracts
27. (1) The Board may, for the purposes of conducting its business,
(a) acquire property in its own name and dispose of the property; and
(b) enter into contracts in its own name.
Legal proceedings
(2) Actions, suits or other legal proceedings in respect of any right or obligation acquired or incurred by the Board may be brought or taken by or against the Board in its name in any court that would have jurisdiction if the Board were a corporation.
Government services and facilities
28. In order to conduct its business effectively and efficiently, the Board may, with consent, use the services and facilities of departments, boards and agencies of the Government of Canada or the Government of the Northwest Territories located in the Northwest Territories and share services and facilities with those departments, boards and agencies.
Obtaining information
29. (1) Subject to any other Act of Parliament, territorial law or Tlicho law, the Board may obtain from any department, board or agency of the Government of Canada or the Government of the Northwest Territories or from the Tlicho Government any information in the possession of the department, board or agency or the Tlicho Government that the Board requires to exercise its powers or perform its functions.
Use of information
(2) Members, alternate members, employees of the Board, agents, advisers and experts are prohibited from using any information received under this Act for any purpose other than performing their functions under this Act.
Languages
Language of business
30. The Board must conduct its business in both of the official languages of Canada in accordance with the Official Languages Act and any directives of the Minister.
Financial Provisions
Annual budget
31. (1) The Board must submit, annually, a budget for the following fiscal year to the Minister for review.
Approval or variation
(2) On completion of the review, the Minister may approve or vary the budget.
Accounts
(3) The Board must maintain books of account and related records in accordance with accounting principles recommended by the Canadian Institute of Chartered Accountants or its successor.
Consolidated financial statements
(4) The Board must, within the time after the end of each fiscal year that the Minister specifies, prepare consolidated financial statements in respect of that fiscal year in accordance with those accounting principles and must include in those statements any documents or information required in support of them.
Audit
(5) The auditor of the Board must audit the accounts, financial statements and financial transactions of the Board annually and must make a report of the audit to the Board and to the Minister.
Annual Report
Submission to Minister and content
32. The Board must, within three months after the end of each fiscal year, submit to the Minister a report on its activities in that year. The annual report must include information on
(a) the Board’s operations;
(b) the number of applications for orders made to the Board;
(c) the orders made by the Board; and
(d) any other matter that the Minister spec- ifies.
APPLICATIONS AND HEARINGS
Jurisdiction of the Board
Negotiations
33. (1) Subject to subsection (2), the Board is not authorized to consider an application for an order unless, in accordance with rules made under paragraph 94(a), the applicant has attempted in good faith to resolve the matter in dispute by negotiation and is unable to bring about a resolution of the dispute within a reasonable period.
Tlicho lands
(2) In the case of an application in respect of Tlicho lands, the Board is not authorized to consider the application unless the applicant has attempted in good faith to resolve the matter in dispute by mediation in accordance with 6.4 of the Tlicho Agreement and is unable to bring about a resolution of the dispute.
Resolved matters
34. (1) The Board is not authorized to make an order in respect of a matter that was resolved by negotiation or mediation unless the parties consent or the Board determines, after reviewing evidence submitted by one of the parties, that there has been a material change in the facts or circumstances that formed the basis of the negotiated or mediated resolution.
For greater certainty
(2) For greater certainty, subsection (1) does not have the effect of preventing the Board from performing its functions under any of sections 55, 58, 70 and 73.
Matters not raised
35. The Board is not authorized to make an order in respect of a matter that is not raised by either of the parties.
Hearings
Rules of evidence
36. The Board must deal with an application for, or a review of, an order as informally and expeditiously as considerations of fairness and the circumstances permit. In particular, the Board
(a) is not bound by any legal or technical rules of evidence; and
(b) must take into account any material that it considers relevant, including Aboriginal traditional knowledge.
General powers of Board
37. The Board has — with respect to the attendance and examination of witnesses, the production and inspection of documents and all other matters necessary or proper in relation to applications for, or reviews of, orders — all the powers, rights and privileges of a superior court.
Reference
38. The Board may, at any stage of its proceedings, refer to the Supreme Court of the Northwest Territories any question or issue of law or jurisdiction, other than a question or issue that has been referred to an arbitration panel established under an Agreement.
Parties to hearing
39. The following are parties to a hearing before the Board:
(a) in the case of an application for an access order,
(i) the individual or entity who requires access to or across designated land or Tlicho lands or access to non-designated land, and
(ii) in relation to designated land, the applicable designated organization, in relation to Tlicho lands, the Tlicho Government or, in relation to non-designated land, the owner or occupant of the land to which the application relates;
(b) in the case of an application for an access order relating to an existing right,
(i) the holder of the existing right, and
(ii) the applicable designated organization or the Tlicho Government, as the case may be;
(c) in the case of an application for an order for compensation in relation to the provision of a public utility,
(i) the entity authorized to provide a public utility, and
(ii) the applicable designated organization or the Tlicho Government, as the case may be; and
(d) in the case of an application for an order for compensation for unforeseen damage,
(i) the individual or entity to whom the access order was issued, and
(ii) in relation to designated land or Tlicho lands, the applicable designated organization or the Tlicho Government, or, in relation to non-designated land, the owner or occupant to whom compensation is payable.
Absence of party
40. The Board is not authorized to hold a hearing in respect of an application for, or a review of, an order in the absence of a party unless that party consents to the holding of the hearing in their absence or was given notice of the hearing in accordance with rules made under paragraph 94(b).
Location of hearing
41. Unless the Board decides otherwise, an application must be heard or a review must be conducted,
(a) in relation to designated land, in a community that is located in the applicable settlement area;
(b) in relation to Tlicho lands, in a community that is located in the Monfwi Gogha De Niitlee; and
(c) in relation to non-designated land, in the community in the Northwest Territories that is closest to that land.
Panels
Composition
42. An application for an order that the Board, in accordance with section 33, is authorized to consider must be heard or a review must be conducted, by a panel of three members or, if the parties consent, by a panel of one member.
Assignment of members
43. Subject to section 44, members are to be assigned to panels in accordance with the Board’s bylaws or, in the absence of an applicable provision in the bylaws, the direction of the Chairperson.
Residency and knowledge requirements
44. (1) If an application for, or a review of, an order deals with Gwich’in lands, Sahtu lands or Tlicho lands or lands described in 20.1.3(a) or (b) of the Gwich’in Agreement or in 21.1.3(a) or (b) of the Sahtu Agreement, the following conditions must be met:
(a) at least one member of the panel must have been appointed by the Minister for reasons that include their being a resident of the applicable settlement area or the Monfwi Gogha De Niitlee, as the case may be, and having the knowledge required under subsection 13(4) in relation to the area in which they are required to reside; and
(b) the lands to which the application or review relates are located in the area in which the member referred to in paragraph (a) is required to reside.
Inuvialuit lands
(2) If an application for, or a review of, an order deals with Inuvialuit lands, the following conditions must be met:
(a) at least one member of the panel must have been appointed by the Minister for reasons that include their meeting the residency requirement set out in paragraph 13(3)(b) and having the knowledge required under subsection 13(4) in relation to the settlement area; and
(b) the lands to which the application or review relates are located in the settlement area.
Absence of panel members
45. (1) If one or two members of a three-member panel are absent, a hearing may, with the consent of the parties, continue with one member of the panel — selected, if one member is absent, in accordance with the Board’s bylaws or, in the absence of an applicable provision in the bylaws, the direction of the Chairperson — who, in the case of an application or a review in respect of lands referred to in section 44, meets the residency and knowledge conditions referred to in that section.
New hearing
(2) If a party does not consent, the application must be reheard, or the review conducted, by another panel.
Disposition
(3) A member of a panel who is not present during the entire hearing is not authorized to participate in the disposition of the application or review unless the parties consent.
Information made available
46. Before making an order or a decision in respect of the review of an order, a panel must make any information that it intends to use available to the parties and provide them with a reasonable opportunity to respond to the information.
Powers and functions
47. (1) A panel has all of the powers, and performs all of the functions, of the Board in relation to an application for, or a review of, an order.
Status of order
(2) An order of a panel is an order of the Board.
ORDERS IN RELATION TO DESIGNATED LAND AND TLICHO LANDS
Access Orders
Required Documents
Copy of agreement or offer
48. An application for an access order must be accompanied by
(a) a copy of any agreement concluded between the parties regarding terms and conditions of access; and
(b) a copy of any agreement concluded between the parties regarding compensation to be paid in respect of the access or, in the absence of such an agreement, a copy of the most recent written offer of compensation, if any, made to the applicable designated organization or the Tlicho Government, as the case may be.
Obligation of Board To Make Access Orders
Definition of “explore for”
49. (1) In this section, “explore for”, in respect of minerals, includes prospecting for minerals and locating claims only if those activities
(a) are conducted on or under Gwich’in lands described in 18.1.2(a) of the Gwich’in Agreement and require a land use permit under another Act of Parliament; or
(b) are conducted on or under Sahtu lands described in 19.1.2(a) of the Sahtu Agreement and require a land use permit or a water licence under another Act of Parliament.
Minerals — Gwich’in or Sahtu lands
(2) The Board must, on application, make an order setting out the terms and conditions on which an individual or entity may access Gwich’in lands or Sahtu lands, and the waters overlying those lands, to exercise, on or under those lands, a right to explore for, develop or produce minerals — granted under another Act of Parliament — or to transport minerals under such a right, if the individual or entity has been unable to obtain the consent of the Gwich’in Tribal Council or the designated Sahtu organization, as the case may be, as well as the compensation to be paid in respect of that access.
Access across — Gwich’in, Sahtu or Tlicho lands
50. (1) The Board must, on application, make an order setting out the terms and conditions on which an individual or entity may have access across Gwich’in lands, Sahtu lands or Tlicho lands, and the waters overlying those lands, to reach adjacent lands or waters for a commercial purpose, as well as the compensation to be paid in respect of that access, if
(a) the Board is satisfied that the individual or entity reasonably requires such access; and
(b) the access is subject to the consent of the Gwich’in Tribal Council, the designated Sahtu organization or the Tlicho Government, as the case may be, and the individual or entity has been unable to obtain that consent.
Consent
(2) The access is subject to consent unless
(a) the individual or entity has a right of access because
(i) the access is of a casual and insignificant nature and prior notice is given to the Gwich’in Tribal Council, the designated Sahtu organization or the Tlicho Government, as the case may be,
(ii) in relation to Gwich’in lands and Sahtu lands, the route is recognized and is being used to reach adjacent lands or waters for a commercial purpose on a regular basis — whether year-round or intermittently — and was being so used before the date of land withdrawal following land selection or, if there was no land withdrawal, the date of transfer of the land, and the access does not significantly alter the use of that route, or
(iii) in relation to Tlicho lands, the route is being used to reach adjacent lands or waters for a commercial purpose on a regular basis, whether year-round or intermittently, and the access does not significantly alter the use of that route;
(b) except if otherwise provided in an agreement with the Gwich’in Tribal Council, the designated Sahtu organization or the Tlicho Government, the individual or entity exercises their right of access in such a manner that
(i) no significant damage is caused to Gwich’in lands, Sahtu lands or Tlicho lands, as the case may be,
(ii) no mischief is committed on the lands, and
(iii) there is no significant interference with the use and peaceful enjoyment of Gwich’in lands by Gwich’in participants, Sahtu lands by Sahtu participants or Tlicho lands by Tlicho Citizens or the Tlicho First Nation, as the case may be; and
(c) the individual or entity exercises their right of access in accordance with any additional terms and conditions established, by agreement or in accordance with the applicable dispute resolution mechanism, under 20.1.7 of the Gwich’in Agreement, 21.1.7 of the Sahtu Agreement or 19.1.9 of the Tlicho Agreement.
Suitable route
(3) The access order must include terms and conditions to ensure that access across the lands and waters is by a suitable route that is the least harmful to Gwich’in participants, to Sahtu participants or to Tlicho Citizens and the Tlicho First Nation, as the case may be.
Access across — Inuvialuit lands
51. (1) The Board must, on application, make an order setting out the terms and conditions on which an individual or entity may have access across Inuvialuit lands to reach lands that are not Inuvialuit lands for a commercial purpose in order to exercise rights, as well as the compensation to be paid in respect of that access, if
(a) the access will be significant, but temporary; and
(b) the individual or entity has been unable to conclude a right of way agreement with the Inuvialuit Regional Corporation.
Suitable route
(2) The access order must include terms and conditions to ensure that the exercise of the right of access is by a route that is both the least harmful to the Inuvialuit and suitable to the individual or entity who will exercise the right.
Damage and loss of use
(3) The access order must include terms and conditions respecting damage to Inuvialuit lands — and mitigation of that damage and restoration of those lands — and any loss of use of those lands by the Inuvialuit.
Mandatory content of order
(4) The access order must provide that
(a) the Inuvialuit and the entities referred to in the definition “Inuvialuit” in section 2 of the Inuvialuit Agreement are not responsible for any damage suffered by the individual or entity to whom the access order is issued by reason only that the damage was suffered in the exercise of the right of access;
(b) the individual or entity to whom the access order is issued is responsible for any damage caused to Inuvialuit lands as a result of the exercise of the right of access; and
(c) failure to comply with the terms and conditions in the access order could lead to the individual or entity to whom the access order is issued being removed from Inuvialuit lands.
Definitions
52. (1) The following definitions apply in this section.
“navigable waterways”
« voie navigable »
« voie navigable »
“navigable waterways” means any portion of a navigable river overlying Gwich’in lands, Sahtu lands or Tlicho lands and other navigable bodies of water overlying those lands that can be entered from a navigable river.
“portages”
« portage »
« portage »
“portages” means routes on Gwich’in lands, Sahtu lands or Tlicho lands for carrying boats and goods between navigable waterways.
“waterfront lands”
« terre riveraine »
« terre riveraine »
“waterfront lands” means the 30.48 metre wide area of Gwich’in lands or Sahtu lands, or the 31 metre wide area of Tlicho lands, measured inland from the limit or edge of the bed, as defined in 2.1.1 of the Gwich’in Agreement, 2.1.1 of the Sahtu Agreement or 1.1.1 of the Tlicho Agreement, of a navigable waterway.
Travel by water — Gwich’in, Sahtu or Tlicho lands
(2) The Board must, on application, make an order setting out the terms and conditions on which an individual or entity may access navigable waterways, waterfront lands and portages for travel by water in the course of conducting a commercial activity — as well as the compensation to be paid in respect of that access — if the access is subject to the consent of the Gwich’in Tribal Council, the designated Sahtu organization or the Tlicho Government, as the case may be, and the individual or entity has been unable to obtain that consent.
Consent
(3) The access is subject to consent unless
(a) the individual or entity has a right of access because
(i) the most direct route is used,
(ii) the use of waterfront lands and portages is minimized, and
(iii) in the case of access to waterfront lands and portages, prior notice is given to the Gwich’in Tribal Council, the designated Sahtu organization or the Tlicho Government, as the case may be;
(b) except if otherwise provided in an agreement with the Gwich’in Tribal Council, the designated Sahtu organization or the Tlicho Government, the individual or entity exercises their right of access in such a manner that
(i) no significant damage is caused to Gwich’in lands, Sahtu lands or Tlicho lands, as the case may be,
(ii) no mischief is committed on the lands, and
(iii) there is no significant interference with the use and peaceful enjoyment of Gwich’in lands by Gwich’in participants, Sahtu lands by Sahtu participants or Tlicho lands by Tlicho Citizens or the Tlicho First Nation, as the case may be;
(c) in the case of access to waterfront lands and portages, the individual or entity exercises their right of access
(i) without establishing any permanent or seasonal camps or structures on the waterfront lands or portages,
(ii) in a manner that does not cause any significant alteration to the waterfront lands or portages, and
(iii) without conducting any commercial activity on the waterfront lands or portages, other than commercial activity that is necessarily incidental to travel; and
(d) the individual or entity exercises their right of access in accordance with any additional terms and conditions established, by agreement or in accordance with the applicable dispute resolution mechanism, under 20.1.7 of the Gwich’in Agreement, 21.1.7 of the Sahtu Agreement or 19.1.9 of the Tlicho Agreement.
Definition of “existing right”
53. (1) In this section, “existing right” means
(a) a right — held as of either the date of land withdrawal following land selection or, if there was no land withdrawal, the date of transfer of the land — to use or operate on lands which became Gwich’in lands or Sahtu lands, and on the waters overlying those lands, including a land use permit, licence or other right of access to or across those lands and waters; and
(b) any associated benefits and privileges, including any renewals, replacements and transfers that may have been granted or permitted had the lands not become Gwich’in lands or Sahtu lands and the ability of employees and clients of the holder of a right referred to in paragraph (a) to exercise any rights that are necessary to permit the existing right-holder to continue to use or operate on Gwich’in lands or Sahtu lands, and the waters overlying those lands.
Existing right — Gwich’in or Sahtu lands
(2) The Board must, on application, make an order setting out the terms and conditions on which an individual or entity may access Gwich’in lands or Sahtu lands, and the waters overlying those lands, to exercise an existing right that has been amended under another Act of Parliament or a territorial law — as well as the compensation to be paid in respect of that access — if the individual or entity has been unable to obtain the consent of the Gwich’in Tribal Council or the designated Sahtu organization, as the case may be.
Exception
(3) For the purpose of subsection (2), an amendment to an existing right does not include a renewal, replacement, extension of term or transfer of the existing right.
Definition of “existing right”
54. (1) In this section, “existing right” means a right of access to Tlicho lands, and the waters overlying those lands, exercised by the holder of
(a) an interest in an excluded parcel listed in part 1 of the appendix to chapter 18 of the Tlicho Agreement or an interest listed in part 2 of that appendix, including a renewal or replacement; or
(b) a land use permit granted by the Mac- kenzie Valley Land and Water Board before the day on which the Tlicho Land Claims and Self-Government Act came into force.
Existing right — Tlicho lands
(2) The Board must, on application, make an order setting out the terms and conditions on which an individual or entity may access Tlicho lands, and the waters overlying those lands, for the purpose of exercising an existing right that involves a location or an activity not authorized as of the day on which the Tlicho Land Claims and Self-Government Act came into force — as well as the compensation to be paid in respect of that access — if the individual or entity has been unable to obtain the consent of the Tlicho Government.
Terms and Conditions
Terms and conditions agreed to by parties
55. If the parties to a hearing have concluded an agreement regarding terms and conditions of access, the Board must include those terms and conditions in the access order.
Terms and conditions determined by Board
56. (1) In addition to the terms and conditions of access in an agreement concluded by the parties, if any, and the terms and conditions of access required by this Act, the Board may include in an access order
(a) terms and conditions respecting any of the following matters:
(i) the times when the right of access may be exercised,
(ii) the giving of notice,
(iii) the location in which the right of access may be exercised and the routes of access,
(iv) the number of individuals who may exercise the right of access,
(v) the activities that may be carried on and the equipment that may be used,
(vi) abandonment and restoration work, and
(vii) the right of a designated organization, the Tlicho Government or an individual or entity occupying the land to verify, by inspection or otherwise, whether the other terms and conditions of the access order and any applicable conditions established by an Agreement have been complied with; and
(b) any other terms and conditions that the Board considers appropriate to minimize any damage to the land or interference with the use and peaceful enjoyment of the land by Gwich’in participants, the Inuvialuit, Sahtu participants, Tlicho Citizens or the Tlicho First Nation, as the case may be.
Limitation — security
(2) The Board is not authorized to include as a term or condition in an access order the posting of security.
Inconsistent terms and conditions
57. In the event of any inconsistency, the following terms and conditions prevail over any terms and conditions included in an access order, to the extent of the inconsistency:
(a) terms and conditions that are set out in a licence, permit or other authorization issued by a regulatory authority in relation to the land or waters in respect of which the access order is made; and
(b) in relation to Gwich’in lands or Sahtu lands, and the waters overlying those lands, conditions in respect of a proposal for a development that are approved under Part 5 of the Mackenzie Valley Resource Management Act.
Compensation
Compensation agreed to by parties
58. (1) If the parties to a hearing have concluded an agreement regarding the compensation to be paid in respect of access, the Board must set out the amount of that compensation in the access order.
Manner of payment
(2) If provided for in the agreement, the Board must also set out the manner of payment of the compensation in the access order.
Compensation determined by Board
59. (1) If the parties to a hearing have not concluded an agreement regarding the compensation to be paid in respect of access, the Board must determine the amount of the compensation and, in so doing, must consider all relevant factors, including
(a) the market value of the land in question on the day on which the application for an order is received by the Board;
(b) any loss of use of the land to Gwich’in participants, the Inuvialuit, Sahtu participants or Tlicho Citizens, as the case may be;
(c) any effect on wildlife harvesting;
(d) any damage that may be caused to the land;
(e) any nuisance or inconvenience, including noise;
(f) the cultural attachment to the land of Gwich’in participants, the Inuvialuit, Sahtu participants or the Tlicho First Nation, as the case may be;
(g) the peculiar or special value of the land to Gwich’in participants, the Inuvialuit, Sahtu participants or the Tlicho First Nation, as the case may be;
(h) any adverse effect on other Gwich’in lands, Inuvialuit lands, Sahtu lands or Tlicho lands; and
(i) any reasonable expenses that may be incurred by a designated organization, the Tlicho Government or an individual or entity occupying the land on account of the costs of an inspection referred to in subparagraph 56(1)(a)(vii).
Limitation
(2) In determining the amount of compensation, the Board is not authorized to consider the reversionary value of the land or any access fee payable.
Definition of “harvesting”
(3) In paragraph (1)(c), “harvesting” means gathering, hunting, trapping or fishing.
Manner of payment
60. If the parties to a hearing have not concluded an agreement regarding the manner of payment of the compensation to be paid in respect of access, the Board may require compensation to be paid by one lump sum payment or by annual or other periodic payments of equal or different amounts and may require the payment of interest, at a rate determined in accordance with the regulations, on compensation payments made after the day on which they are required to be made.
Payment Before Exercise of Right of Access
Access fee and amount for exercise of right of access
61. An individual or entity to whom an access order is issued is not permitted to exercise the right of access provided for in the order until after payment to the applicable designated organization or the Tlicho Government, as the case may be, of any access fee fixed by the regulations and
(a) if the parties have concluded an agreement regarding the compensation to be paid in respect of access, the amount that, under the agreement, must be paid before the right of access may be exercised or, if no such amount is specified, 80% of the total amount of compensation that the parties have agreed to;
(b) if the parties have not concluded an agreement regarding compensation, 80% of the total amount of compensation referred to in the most recent written offer of compensation made to the designated organization or the Tlicho Government, as the case may be; or
(c) if the parties have not concluded an agreement regarding compensation and there is no written offer of compensation, the amount that is determined by the Board and set out in the order.
Interim Access Orders
If compensation not determined
62. (1) Pending the determination of the amount of compensation to be paid in respect of access, the Board may make an interim access order that sets out the terms and conditions of access.
Hearing and access order
(2) Within 30 days after making an interim access order, the Board must hold a hearing to determine the amount of compensation to be paid in respect of access and revoke the interim access order and replace it with an access order that sets out the amount of compensation and the terms and conditions of access.
Continued authority
(3) Any failure of the Board to make an access order within the period set out in subsection (2) does not terminate the Board’s authority or invalidate the interim access order or an access order made after the expiry of that period.
Other Orders
Required documents
63. An application for an order under section 64 or 65 must be accompanied by a copy of the most recent written offer of compensation, if any, made to the applicable designated organization or the Tlicho Government, as the case may be.
Definition of “public utility”
64. (1) In this section, “public utility” means the provision of electrical power, telecommunications services or similar utilities to the public by an entity authorized under another Act of Parliament or a territorial law. For greater certainty, “public utility” does not include the transmission of hydrocarbons by pipelines.
Public utilities
(2) The Board must, on application, make an order setting out the amount of compensation that an entity authorized to provide a public utility is required to pay to Gwich’in participants, Sahtu participants, the Tlicho Government or Tlicho Citizens, as the case may be, for damage to Gwich’in lands, Sahtu lands or Tlicho lands, or for interference with the use and peaceful enjoyment of Gwich’in lands by Gwich’in participants, Sahtu lands by Sahtu participants or Tlicho lands by Tlicho Citizens or the Tlicho First Nation, as the case may be, if
(a) the damage or interference results from the entity’s exercise of their right of access to Gwich’in lands, Sahtu lands or Tlicho lands to carry out assessments, surveys or studies in relation to a proposed public utility; and
(b) the entity and the Gwich’in Tribal Council, the designated Sahtu organization or the Tlicho Government, as the case may be, have been unable to agree on the amount of compensation.
Unforeseen damage
65. If compensation is payable to a designated organization or the Tlicho Government under an access order of the Board, including one that is no longer in effect, the Board must, on application by the designated organization or the Tlicho Government, make an order setting out the amount of additional compensation to be paid to the designated organization or the Tlicho Government, as the case may be, for any damage that was caused to designated land or Tlicho lands — as a result of the exercise of a right of access referred to in the access order — and that was unforeseen at the time that order was made.
Factors to be considered
66. (1) In determining the amount of compensation to be paid for the purpose of an order made under section 64 or 65, the Board must consider all relevant factors, including those listed in paragraphs 59(1)(a) to (i).
Limitation
(2) In determining the amount of compensation, the Board is not authorized to consider the reversionary value of the land or any access fee payable.
Manner of payment
67. The Board may require compensation to be paid by one lump sum payment or by annual or other periodic payments of equal or different amounts and may require the payment of interest, at a rate determined in accordance with the regulations, on compensation payments made after the day on which they are required to be made.
ORDERS IN RELATION TO NON-DESIGNATED LAND
Access Orders
Required Documents
Copy of agreement or offer
68. An application for an access order must be accompanied by
(a) a copy of any agreement concluded between the parties regarding terms and conditions of access; and
(b) a copy of any agreement concluded between the parties regarding compensation to be paid in respect of the access or, in the absence of such an agreement, a copy of the most recent written offer of compensation, if any, made to the owner or occupant of the land to which the application relates.
Obligation of Board To Make Access Orders
Minerals
69. (1) The Board must, on application, make an order setting out the terms and conditions on which an individual or entity may access non-designated land to exercise, on or under that land, a right to explore for, develop or produce minerals — granted under another Act of Parliament — or to transport minerals under such a right, if the individual or entity has been unable to obtain the consent of the owner or occupant, as the case may be, as well as the compensation to be paid in respect of that access.
Oil and gas leases
(2) Subsection (1) does not apply to an application for an order relating to any of the oil and gas leases numbered 703, 704, 705, 707-R, 708-R, 709-R, 710-R and 838, issued under the Canada Oil and Gas Land Regulations.
Terms and Conditions
Terms and conditions agreed to by parties
70. If the parties to a hearing have concluded an agreement regarding terms and conditions of access, the Board must include those terms and conditions in the access order.
Terms and conditions determined by Board
71. (1) In addition to the terms and conditions of access in an agreement concluded by the parties, if any, and the terms and conditions of access required by this Act, the Board may include in an access order
(a) terms and conditions respecting any of the following matters:
(i) the times when the right of access may be exercised,
(ii) the giving of notice,
(iii) the location in which the right of access may be exercised and the routes of access,
(iv) the number of individuals who may exercise the right of access,
(v) the activities that may be carried on and the equipment that may be used,
(vi) abandonment and restoration work, and
(vii) the right of the owner or occupant of the land to verify, by inspection or otherwise, whether the other terms and conditions of the access order have been complied with; and
(b) any other terms and conditions that the Board considers appropriate to minimize any damage to the land or interference with the use and peaceful enjoyment of the land by the owner or occupant of the land.
Limitation — security
(2) The Board is not authorized to include as a term or condition in an access order the posting of security.
Inconsistent terms and conditions
72. In the event of any inconsistency, terms and conditions in a licence, permit or other authorization issued by a regulatory authority in relation to the land in respect of which an access order is made prevail over any terms and conditions included in the access order, to the extent of the inconsistency.
Compensation
Compensation agreed to by parties
73. (1) If the parties to a hearing have concluded an agreement regarding the compensation to be paid in respect of access, the Board must set out the amount of that compensation in the access order.
Manner of payment
(2) If provided for in the agreement, the Board must also set out the manner of payment of the compensation in the access order.
Compensation determined by Board
74. (1) If the parties to a hearing have not concluded an agreement regarding the compensation to be paid in respect of access, the Board must determine the amount of the compensation and, in so doing, must consider all relevant factors, including
(a) the market value of the land in question on the day on which the application for an order is received by the Board;
(b) any loss of use of the land to its owner or occupant;
(c) any damage that may be caused to the land;
(d) any nuisance or inconvenience, including noise;
(e) any adverse effect on other lands belonging to the owner of the land or occupied by the occupant of the land; and
(f) any reasonable expenses that may be incurred by the owner or occupant of the land on account of the costs of an inspection referred to in subparagraph 71(1)(a)(vii).
Additional factors
(2) In the case of lands described in 20.1.3(a) or (b) of the Gwich’in Agreement or in 21.1.3(a) or (b) of the Sahtu Agreement, the Board must also consider
(a) any effect on wildlife harvesting;
(b) the cultural attachment to the land of Gwich’in participants or Sahtu participants, as the case may be; and
(c) the peculiar or special value of the land to Gwich’in participants or Sahtu participants, as the case may be.
Limitation
(3) In determining the amount of compensation, the Board is not authorized to consider the reversionary value of the land.
Definition of “harvesting”
(4) In paragraph (2)(a), “harvesting” means gathering, hunting, trapping or fishing.
Manner of payment
75. If the parties to a hearing have not concluded an agreement regarding the manner of payment of the compensation to be paid in respect of access, the Board may require compensation to be paid by one lump sum payment or by annual or other periodic payments of equal or different amounts and may require the payment of interest, at a rate determined in accordance with the regulations, on compensation payments made after the day on which they are required to be made.
Payment Before Exercise of Right of Access
Amount for exercise of right of access
76. (1) An individual or entity to whom an access order is issued is not permitted to exercise the right of access provided for in the order until after payment to the owner or occupant, as the case may be, of
(a) if the parties have concluded an agreement regarding the compensation to be paid in respect of access, the amount that, under the agreement, must be paid before the right of access may be exercised or, if no such amount is specified, 80% of the total amount of compensation that the parties have agreed to;
(b) if the parties have not concluded an agreement regarding compensation, 80% of the total amount of compensation referred to in the most recent written offer of compensation made to the owner or occupant of the land to which the order applies, as the case may be; or
(c) if the parties have not concluded an agreement regarding compensation and there is no written offer of compensation, the amount that is determined by the Board and set out in the order.
Access fee
(2) In addition, in the case of lands described in 20.1.3(a) or (b) of the Gwich’in Agreement or in 21.1.3(a) or (b) of the Sahtu Agreement, the individual or entity to whom the access order is issued is not permitted to exercise the right of access provided for in the order until after payment to the applicable designated organization of any access fee fixed by the regulations.
Interim Access Orders
If compensation not determined
77. (1) Pending the determination of the amount of compensation to be paid in respect of access, the Board may make an interim access order that sets out the terms and conditions of access.
Hearing and access order
(2) Within 30 days after making an interim access order, the Board must hold a hearing to determine the amount of compensation to be paid in respect of access and revoke the interim access order and replace it with an access order that sets out the amount of compensation and the terms and conditions of access.
Continued authority
(3) Any failure of the Board to make an access order within the period set out in subsection (2) does not terminate the Board’s authority or invalidate the interim access order or an access order made after the expiry of that period.
Other Orders
Required documents
78. An application for an order under section 79 must be accompanied by a copy of the most recent written offer of compensation, if any, made to the owner or occupant, as the case may be.
Unforeseen damage
79. If compensation is payable to an owner or occupant under an access order of the Board, including one that is no longer in effect, the Board must, on application by the owner or occupant, make an order setting out the amount of additional compensation to be paid to the owner or occupant, as the case may be, for any damage that was caused to the non-designated land — as a result of the exercise of a right of access referred to in the access order — and that was unforeseen at the time that order was made.
Factors to be considered
80. (1) In determining the amount of compensation to be paid for the purpose of an order made under section 79, the Board must consider all relevant factors, including those listed in paragraphs 74(1)(a) to (e).
Additional factors
(2) In the case of lands described in 20.1.3(a) or (b) of the Gwich’in Agreement or in 21.1.3(a) or (b) of the Sahtu Agreement, the Board must also consider the factors listed in paragraphs 74(2)(a) to (c).
Limitation
(3) In determining the amount of compensation, the Board is not authorized to consider the reversionary value of the land or any access fee payable.
Manner of payment
81. The Board may require compensation to be paid by one lump sum payment or by annual or other periodic payments of equal or different amounts and may require the payment of interest, at a rate determined in accordance with the regulations, on compensation payments made after the day on which they are required to be made.
GENERAL
Orders and Decisions of the Board
Costs
82. The Board may, by order, award costs on or before the final disposition of a matter, in accordance with the rules made under section 95 or, in the absence of any such rules, in its discretion.
Reasons
83. The Board must give written reasons for
(a) any decision to refuse to consider an application for an order;
(b) any order that it makes, including an interim access order and an amended order;
(c) any decision not to make or amend an order; and
(d) any decision to terminate, or not to terminate, an order.
Final and binding
84. Subject to sections 89 to 92, an order of the Board and any decision made by the Board in respect of an application for, or a review of, an order is final and binding and is not subject to appeal to, or review by, any court.
Copies
85. The Board must, as soon as feasible, provide copies of any order or decision referred to in section 83 to the parties and any applicable regulatory authority.
Proof of orders
86. A document that appears to be an order of the Board, or a document that appears to be certified by the Chairperson or any other individual authorized by the Board’s bylaws as a true copy of an order, is evidence of the making of the order and of its contents, without proof of the signature or official character of the individual appearing to have signed the order or certified the copy.
Successors
87. An order of the Board is binding on, and the rights and obligations under it extend to, any individual or entity that subsequently acquires the ownership of, or other interest or right in, the land to which the order applies and, in the case of an access order, any individual or entity that subsequently acquires the right of access and the right for which that right was acquired.
Enforcement of orders
88. An order of the Board may be made an order of the Supreme Court of the Northwest Territories by the filing of a certified copy of it in the office of the clerk of the court and the order, when so made, is enforceable in the same manner as an order of that court.
Review of Access Orders
Review on application
89. (1) The Board must, on application by a party to a hearing or any of the party’s successors, review in its entirety an access order it made in respect of that hearing if it appears, in the Board’s opinion, that there has been a material change in the facts or circumstances relating to the order.
Amendment of access order
(2) On completion of its review of an access order, the Board must make any amendments to the order that it considers appropriate if it determines that there has been a material change in the facts or circumstances relating to the order that would justify amending it.
Restriction
(3) The Board may only amend an access order in a way that is not likely to cause significant damage to designated land, Tlicho lands or non-designated land or to significantly interfere with the use and peaceful enjoyment of those lands by Gwich’in participants, the Inuvialuit, Sahtu participants, Tlicho Citizens or the Tlicho First Nation or the owner or occupant of non-designated land, as the case may be.
Five-year review
90. (1) The Board must review in its entirety any access order it has made on the expiry of each five-year period after the day on which the Board made the order or the day on which it made a decision on completion of its most recent review, as the case may be, unless the parties waive the requirement for a review or are deemed, under subsection (3), to have waived that requirement.
Notice
(2) The Board must, at least 90 days before the expiry of each five-year period, notify, in writing, the parties and any of their successors who have notified the Board of the succession that the Board intends to review the order and the parties may, at least 30 days before the expiry of that five-year period, make written representations to the Board.
Deemed waiver
(3) A party who does not make written representations to the Board within the required period is deemed to have waived the requirement for a review.
Amendment of access order
(4) On completion of its review of an access order, the Board must make any amendments to the order that it considers appropriate if it determines that there has been a material change in the facts or circumstances relating to the order that would justify amending it.
Restriction
(5) The Board may only amend an access order in a way that is not likely to cause significant damage to designated land, Tlicho lands or non-designated land or to significantly interfere with the use and peaceful enjoyment of those lands by Gwich’in participants, the Inuvialuit, Sahtu participants, Tlicho Citizens or the Tlicho First Nation or the owner or occupant of non-designated land, as the case may be.
Termination of Access Orders
Application by party
91. (1) The Board must, on application by a party to a hearing or any of the party’s successors, terminate an access order it made in respect of that hearing if the Board determines that
(a) the holder of the right of access is no longer exercising that right for the purpose for which the order was made; or
(b) the conditions that would have permitted the holder of the right of access to exercise that right without consent are now met.
Hearing
(2) The Board may only terminate an access order after it has held a hearing during which the parties may make representations with respect to the termination.
Application by parties
92. The Board must, on application by the parties to a hearing or their successors, terminate an access order if the parties have concluded an agreement governing the terms and conditions of access to the lands in question and waters overlying those lands, as well as the compensation to be paid in respect of that access and wish that access be governed by the agreement rather than the order.
Jurisdiction of the Supreme Court of the Northwest Territories
Exclusive jurisdiction
93. Despite section 18 of the Federal Courts Act, the Supreme Court of the Northwest Territories has exclusive original jurisdiction to hear and determine an application for relief against the Board — by way of an injunction or declaration or by way of an order in the nature of certiorari, mandamus, quo warranto or prohibition — by the Attorney General of Canada, the Attorney General of the Northwest Territories or any individual or entity directly affected by the matter in respect of which relief is sought.
Rules of the Board
Mandatory rules
94. The Board must make rules — consistent with the Agreements — respecting
(a) the conduct of negotiations for the purposes of subsection 33(1);
(b) practice and procedure in relation to applications for orders and reviews and to hearings in respect of applications and reviews, including the service of documents and the imposition of reasonable time limits;
(c) the determination of whether any information relating to an application for, or a review of, an order is confidential, personal, business proprietary or privileged, or whether any Aboriginal traditional knowledge is to be treated as confidential; and
(d) the measures to be taken to prevent disclosure of the information or knowledge referred to in paragraph (c), including holding hearings in private.
Other rules
95. The Board may make rules respecting any other matter, including the allowance of costs, such as rules
(a) establishing a schedule of fees and other expenses incurred by a party that may be allowed as part of that party’s costs; and
(b) respecting the circumstances under which the Board may allow costs on a basis other than that established by the schedule.
Statutory Instruments Act
96. Sections 3, 5 and 11 of the Statutory Instruments Act do not apply in respect of the rules of the Board.
Notice of proposed rule
97. (1) The Board must give notice of any proposed rule by
(a) publishing the proposed rule on its Internet site and in a newspaper that, in the Board’s opinion, has a large circulation in the Northwest Territories;
(b) providing the proposed rule to the Minister, the minister of the Northwest Territories designated by the Commissioner of the Northwest Territories for the purposes of this paragraph, designated organizations and the Tlicho government; and
(c) providing the proposed rule to the individuals and entities that have given written notice to the Board of their interest in receiving a copy of any proposed rule.
Representations invited
(2) The notice must include an invitation to any interested individual or entity to make representations in writing to the Board about the proposed rule within 60 days after the notice is published or communicated, as the case may be.
Representations to be considered
(3) The Board must consider any written representation that it receives within the required period and make any amendment to the proposed rule that it considers appropriate.
Exception
(4) Once notice is given under subsection (1), no further notice is required in respect of any amendment to the proposed rule that results from any representations made.
Publication of rule
(5) As soon as feasible after the rule is made, the Board must
(a) publish it on its Internet site and in a newspaper that, in the Board’s opinion, has a large circulation in the Northwest Territories; and
(b) publish a notice in the Canada Gazette that the rule has been made, indicating the newspaper in which it has been published.
Public Registry
Contents
98. (1) The Board must maintain a public registry on its Internet site. The Board must include the following in that registry:
(a) a list of its members and alternate members;
(b) all bylaws made under section 25;
(c) the annual report referred to in section 32;
(d) all applications for orders or reviews made to the Board — including all documents submitted in support of an application — and all orders and decisions referred to in section 83; and
(e) all rules made under sections 94 and 95.
Public inspection
(2) The documents referred to in subsection (1) must also be available for public inspection at the Board’s head office, in accordance with any conditions that may be prescribed by regulation.
Limitation on disclosure
(3) For greater certainty, the information or knowledge referred to in paragraph 94(c) that is determined to be confidential, personal, business proprietary or privileged or that is to be treated as confidential, as the case may be, must not be included in the public registry.
Regulations
Regulations
99. The Governor in Council may make regulations
(a) specifying types of agreements for the purpose of section 7;
(b) defining “resident” for the purposes of subsection 12(2) or 13(1) or (3), section 14 or 44 or subsection 45(1), as the case may be;
(c) specifying what constitutes a conflict of interest for the purpose of section 21;
(d) fixing, for the purposes of sections 60, 67, 75 and 81, a rate of interest, or the manner of determining the rate of interest, that may be payable on compensation payments made after the day on which they are required to be made;
(e) fixing the amount, or the manner of determining the amount, of an access fee for the purposes of section 61 and subsection 76(2);
(f) establishing conditions under which documents may be inspected by the public under subsection 98(2); and
(g) generally, for carrying out the purposes and provisions of this Act.
TRANSITIONAL PROVISIONS
Request for arbitration already made
100. This Act does not apply to any matter that is, before the day on which section 8 comes into force, the subject of a submission to arbitration, as referred to in 6.3.2 of the Gwich’in Agreement and 6.3.2 of the Sahtu Agreement, or a request for arbitration, as referred to in 6.5.1 of the Tlicho Agreement.
Inuvialuit Agreement
101. This Act does not apply to any matter that is, before the day on which section 8 comes into force, the subject of a notice of arbitration, as referred to in subsection 18(16) of the Inuvialuit Agreement, and, for greater certainty, section 18 of the Inuvialuit Agreement continues to apply to such a matter.
1994, c. 43
Related Amendments to the Yukon Surface Rights Board Act
12. Section 10 of the Yukon Surface Rights Board Act is amended by adding the following after subsection (2):
Acting after termination of appointment
(2.1) If the appointment of a member is terminated under subsection (2) before they have made a decision in a matter for which a hearing is held, they may, with the consent of the parties to the hearing, continue to perform their duties and functions as a member only in relation to that matter until the hearing is concluded and a decision is made. For the purpose of the appointment of a replacement, their office is deemed to be vacant as soon as their appointment is terminated under subsection (2).
13. Section 11 of the Act is amended by adding the following after subsection (2):
Acting after expiry of term
(2.1) If the term of a member expires before they have made a decision in a matter for which a hearing is held, they may, in accordance with the Board’s by-laws or, in the absence of an applicable provision in the by-laws, the direction of the Chairperson, continue to perform their duties and functions as a member only in relation to that matter until the hearing is concluded and a decision is made. For the purpose of the appointment of a replacement, their office is deemed to be vacant as soon as their term expires.
14. The Act is amended by adding the following after section 15:
Acts done in good faith
15.1 No action lies against a member or an employee of the Board for anything done or omitted to be done in good faith in the performance, or purported performance, of any function under this Act.
15. Section 18 of the Act is amended by striking out “and” at the end of paragraph (b) and by adding the following after that paragraph:
(b.1) in the case of a member whose term has expired, respecting the member’s ability to continue to perform their functions in relation to a matter for which a hearing is held; and
16. Section 23 of the Act is amended by adding the following after subsection (4):
Audit
(5) The auditor of the Board shall audit the accounts, financial statements and financial transactions of the Board annually and shall make a report of the audit to the Board and to the Minister.
Consequential Amendments
R.S., c. A-1
Access to Information Act
17. Schedule I to the Access to Information Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:
Northwest Territories Surface Rights Board
Office des droits de surface des Territoires du Nord-Ouest
R.S., c. O-7; 1992, c. 35, s. 2
Canada Oil and Gas Operations Act
18. (1) Subsection 5.01(2) of the Canada Oil and Gas Operations Act is amended by striking out “and” at the end of paragraph (a) and by adding the following after that paragraph:
(a.1) in the case of land in the Northwest Territories, an order made by the Northwest Territories Surface Rights Board under the Northwest Territories Surface Rights Board Act; and
2002, c. 10, s. 190
(2) Subsection 5.01(3) of the Act is replaced by the following:
Exception
(3) Subsections (1) and (2) do not apply in respect of Inuit-owned land as defined in subsection 2(1) of the Nunavut Waters and Nunavut Surface Rights Tribunal Act, designated land as defined in subsection 2(1) of the Northwest Territories Surface Rights Board Act or Tlicho lands, which has the same meaning as in 1.1.1 of the Tlicho Agreement as defined in subsection 2(1) of that Act.
R.S., c. P-21
Privacy Act
19. The schedule to the Privacy Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:
Northwest Territories Surface Rights Board
Office des droits de surface des Territoires du Nord-Ouest
Coming into Force
Coming into force
20. Sections 8 and 33 to 93 of the Northwest Territories Surface Rights Board Act and section 18 of this Act come into force 24 months after the day on which this Act receives royal assent or on any earlier day that may be fixed by order of the Governor in Council.
SCHEDULE
(Section 2)
SCHEDULE 1
(Section 30)
I, ..............., do solemnly affirm (or swear) that I will faithfully, truly, impartially and honestly and to the best of my judgment, skill and ability, execute and perform the duties required of me as a member of the (Nunavut Planning Commission or the Nunavut Impact Review Board). (So help me God.)
SCHEDULE 2
(Subsection 73(2) and section 229)
DESIGNATED REGULATORY AGENCIES
Canadian Nuclear Safety Commission
Commission canadienne de sûreté nucléaire
National Energy Board
Office national de l’énergie
Nunavut Water Board
Office des eaux du Nunavut
SCHEDULE 3
(Subsection 78(2), paragraph 155(1)(a) and subsections 166(2) and 230(4))
CLASSES OF WORKS AND ACTIVITIES EXEMPT FROM SCREENING
Published under authority of the Speaker of the House of Commons
Table of Contents