Vol. 148, No. 21 — May 24, 2014

Regulations Amending the Territorial Land Use Regulations

Statutory authority

Territorial Lands Act

Sponsoring department

Department of Indian Affairs and Northern Development

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The current time frame for land use permits issued pursuant to the Territorial Land Use Regulations (the Regulations) for various industry activities has proven to be insufficient to cover the length of time needed for those activities to be completed. This has resulted in a high number of permit renewal applications for the same activity and has created undo administrative burden for industry and government in the North. The proposed amendments to the Territorial Land Use Regulations address this problem.

Background

The Territorial Land Use Regulations, made under the Territorial Lands Act, apply to territorial lands that are under the control, management and administration of the Minister of Indian Affairs and Northern Development and relate to the use of land through the issuance of land use permits. Land use permits are short-term in nature and are used for a variety of activities, such as academic research, mining exploration, fuel storage and caching.

The Territorial Land Use Regulations allow for two classes of land use permits: Class A and Class B. The class depends on the scope of activities to be carried out as detailed in sections 8 and 9 of the Regulations. All land use permit applications are subject to an environmental screening. Both the Western Arctic Claim: The Inuvialuit Final Agreement and the Nunavut Land Claims Agreement have articles that outline the level of environmental screenings that may be required.

Over the past decade, the North has seen an increase in exploration activity, particularly in the mining and oil and gas industries. The amendments to the Territorial Land Use Regulations address issues that were raised by industry. As part of the Action Plan to Improve Northern Regulatory Regimes, announced by the Minister of Indian Affairs and Northern Development in May 2010, the amendments will bring the Regulations in step with current operating realities and make the process of granting land use permits more efficient for industry and government in the North.

The proposed amendments to the Territorial Land Use Regulations are administrative in nature and will provide consistency for companies and regulators. They will allow for more adequate time for consultation on Class B applications and will help improve how final plans are reported through the use of new technologies, such as satellite imagery.

Objectives

The objectives of the proposed amendments are to reduce the administrative burden for companies and regulators by increasing the length of a land use permit from two years to a maximum of five years and increasing the length of the permit extension from one year to a maximum of two years, to ensure that adequate time is provided for consultation on Class B applications, to allow for new technologies (i.e. GPS coordinates) to be used in the final reporting and to modernize the language used in the provisions of the Territorial Land Use Regulations.

The proposed amendments will help bring the Territorial Land Use Regulations more in step with the Mackenzie Valley Land Use Regulations, which will bring more consistency to the regulatory regime that is currently being used in the North. For example, if a land use permit that crosses two different jurisdictions is required, the length of both permits can be coordinated to be the same length of time, thereby avoiding any administrative delays that would slow down the activity.

Moreover, while not reducing or changing how land use permit applications are reviewed for environmental impacts, the proposed changes will alleviate some of the administrative burden on industry and within government.

Description

By changing the length of the permit term from two years to a maximum of five years and changing the length of the permit extension from one year to a maximum of two years, greater flexibility is afforded to companies when planning their activities. The proposed changes will also relieve some of the administrative burden on both companies and the Crown.

The proposed changes will help improve how land is administered in the North and will also bring the Territorial Land Use Regulations more in line with the Mackenzie Valley Land Use Regulations in the Northwest Territories, since the Mackenzie Valley Land Use Regulations already allow for land use permits to be issued for five years with the possibility of two-year extensions.

The information currently specified in the Territorial Land Use Regulations for final plans is outdated. The proposed change removes references to outdated technology and replaces them with updated technological references currently used in the field.

The current time period of 10 days prescribed for the issuance of a Class B permit does not allow adequate time for consultation. The proposed change to a 30-day consultation period would afford reviewers more time to review a Class B application.

“One-for-One” Rule

The “One-for-One” Rule applies to these amendments and the proposal is considered an “OUT” (decrease of the administrative costs on business) under the rule.

Changing the length of the permit term from two years to a maximum of five years and the length of the permit extension from one year to a maximum of two years gives companies greater flexibility to plan their activities. The proposed changes will also relieve some of the administrative burden on companies and the Crown from having to reapply for a permit after three years.

Although it is expected that the length of time to apply for a permit or renewal will not change, the longer term will result in fewer renewals. Out of the average of 38 applicants per year, based on data for the past 10 years, an average of 11 applicants (i.e. 30%) would have to reapply after three years. These renewals will now be avoided with the implementation of a longer land use permit term.

The average annual savings for each stakeholder is projected to be approximately $140. The average annual savings for all stakeholders is projected to be $5,318. The annual savings for the 30% of the total stakeholders that would be affected is based on information gathered from and through experience working directly with proponents in the development, submission and implementation of land use permits and data obtained over a 10-year period. As a result of the proposed amendments, stakeholders will save time on obtaining information, completing the land use permit application, submitting the application and following up, and implementing the permit. In total, each affected stakeholder will save, at a minimum, 27 hours in labour time.

Small business lens

The small business lens does not apply to this proposal, as there are no costs to small business.

There are no costs associated with the proposed amendments as they are administrative in nature. There will be no changes to the fees associated with land use permit applications, or to the service fees or land use fees set out in Schedules I and II of the Territorial Land Use Regulations.

Consultation

In January, March and April 2010, Aboriginal Affairs and Northern Development Canada held informal and formal discussions with industry and potential stakeholders at the Mineral Exploration Roundup in Vancouver, British Columbia, at the Prospectors and Developers Association of Canada Convention in Toronto, Ontario, and at the Nunavut Mining Symposium in Iqaluit, Nunavut. In general, the comments were supportive of the proposed changes.

A consultation document, including a supporting letter and the proposed amendments, was distributed for comments on March 4, 2010, to stakeholders in the Northwest Territories and Nunavut, which included municipalities, territorial and federal government departments, Aboriginal governments and organizations, various land and water boards and environmental boards, and industry groups. Comments were requested by April 30, 2010.

Community meetings were also arranged and held in three locations to discuss the potential amendments. The meetings took place on March 22, 2010, in Inuvik, Northwest Territories, on March 23, 2010, in Yellowknife, Northwest Territories, and on March 25, 2010, in Iqaluit, Nunavut. Approximately 30 people attended these meetings.

Written comments were received from the Kitikmeot Inuit Association, the Department of Culture, Language, Elders and Youth of the Government of Nunavut, the Athabasca Denesuline Negotiation Team, the Northwest Territories Chamber of Commerce and the Department of Environment and Natural Resources of the Government of the Northwest Territories.

In June 2012, a new consultation document and supporting letter with the proposed amendments were distributed for comments to the same stakeholders as the March 4, 2010, distribution. Comments were requested by July 20, 2012. In general, the comments were supportive of the proposed amendments, and potential controversy on the regulatory proposal itself is expected to be low.

While concerns about language and minor technical issues were taken into account, two substantive issues were raised by the Department of Environment and Natural Resources of the Government of the Northwest Territories and have been addressed.

First, the Department of the Environment and Natural Resources of the Government of the Northwest Territories had concerns regarding the absence of a provision that allows terms and conditions to be made under subsection 31(1) of the Territorial Land Use Regulations for archeological sites, historical sites or burial sites, as allowed under subsection 26(1) of the Mackenzie Valley Land Use Regulations. This has been addressed and a provision has been added to subsection 31(1) of the Territorial Land Use Regulations to allow for the protection of archeological sites, historical sites or burial sites.

Second, comments were received regarding increases to the security amount under the Territorial Land Use Regulations. The Department of Environment and Natural Resources of the Government of the Northwest Territories recommended taking an objective-based approach to determining securities, such as that used in the Mackenzie Valley Land Use Regulations. Aboriginal Affairs and Northern Development Canada is currently engaged in a review of the collection of security. Once the review is completed and the findings are considered, security deposit requirements under the Territorial Land Use Regulations may need to be revisited.

Rationale

The proposed amendments to the Territorial Land Use Regulations address the issues that were raised by industry. In furtherance of the Action Plan to Improve Northern Regulatory Regimes, announced by the Minister of Indian Affairs and Northern Development in May 2010, the amendments will bring the Territorial Land Use Regulations in step with current operating realities and make the process more efficient for industry and government in the North.

Implementation, enforcement and service standards

The proposed amendments will come into force on the day on which they are registered. Aboriginal Affairs and Northern Development Canada will continue to communicate regarding all aspects of the amendments to the Territorial Land Use Regulations and will be informing stakeholders through news releases and letters or notices to target audiences.

As the proposed regulatory amendments do not impact Aboriginal Affairs and Northern Development Canada’s role or mandate, no additional mechanisms to ensure compliance with the new requirements are needed. The Department’s existing enforcement and compliance tools will continue to be used.

Contacts

Glen Stephens
Director
Land and Water Management Directorate
Northern Affairs Organization
Aboriginal Affairs and Northern Development Canada
Gatineau, Quebec
Telephone: 819-994-7483
Fax: 819-997-9623
Email: Glen.Stephens@aadnc-aandc.gc.ca

Jeff Holwell
Senior Analyst, Lands
Land and Water Management Directorate
Northern Affairs Organization
Aboriginal Affairs and Northern Development Canada
Gatineau, Quebec
Telephone: 819-997-9243
Fax: 819-997-9623
Email: Jeffrey.Holwell@aadnc-aandc.gc.ca

PROPOSED REGULATORY TEXT

Notice is given, pursuant to section 24 of the Territorial Lands Act (see footnote a), that the Governor in Council, pursuant to section 5 and paragraphs 23(j) and (l) of that Act, proposes to make the annexed Regulations Amending the Territorial Land Use Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Jeffrey Holwell, Senior Policy Analyst, Land and Water Management Directorate, Northern Affairs, Department of Aboriginal Affairs and Northern Development, 15 Eddy Street, 10th Floor, Gatineau, Quebec K1A 0H4 (tel.: 819-997-9243; fax: 819-997-9623; email: Jeffrey.Holwell@aadnc-aandc.gc.ca).

Ottawa, May 15, 2014

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE TERRITORIAL LAND USE REGULATIONS

AMENDMENTS

1. The definition “territorial lands” in section 2 of the Territorial Land Use Regulations (see footnote 1) is repealed.

2. The heading before section 3 of the French version of the Regulations is replaced by the following:

CONSTITUTION DE ZONES D’AMÉNAGEMENT

3. Section 3 of the Regulations is replaced by the following:

3. The following lands are set apart and appropriated as a land management zone, and these Regulations apply in that zone:

4. Paragraph 6(a) of the Regulations is replaced by the following:

5. Section 7 of the Regulations is replaced by the following:

7. A person shall not engage in a land use operation except in accordance with these Regulations, the Northwest Territories Waters Act, the Nunavut Waters and Nunavut Surface Rights Tribunal Act and any regulations made under those Acts.

6. Subsection 13(2) of the Regulations is replaced by the following:

(2) Subsection (1) does not permit any person to deposit any material or debris in a stream contrary to the Fisheries Act, the Northwest Territories Waters Act, the Nunavut Waters and Nunavut Surface Rights Tribunal Act or any regulations made under those Acts.

7. The portion of section 27 of the Regulations before paragraph (a) is replaced by the following:

27. The engineer shall, within 30 days after receipt of an application for a Class B Permit made in accordance with these Regulations,

8. (1) Subsection 31(1) of the Regulations is amended by striking out “and” at the end of paragraph (l) and by adding the following after that paragraph:

(2) Paragraph 31(1)(m) of the French version of the Regulations is replaced by the following:

(3) Subsections 31(4) and (5) of the Regulations are replaced by the following:

(4) A permit expires at the end of the period of validity set out in the permit, which shall be based on the estimated dates of commencement and completion set out in the permit application and shall not exceed five years.

(5) On receipt of a written request from a permittee to extend the duration of a permit, the engineer may grant the extension, subject to any terms and conditions referred to in subsection (1), for a period not exceeding two years, as is necessary to enable the permittee to complete the land use operation authorized by the permit.

(6) A permit’s duration may be extended under subsection (5) only once.

9. Subsection 33(2) of the Regulations is replaced by the following:

(2) The final plan must meet one of the following two requirements:

10. Subparagraph 35(c)(ii) of the Regulations is replaced by the following:

COMING INTO FORCE

11. These Regulations come into force on the day on which they are registered.

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