ARCHIVED — Vol. 147, No. 10 — May 8, 2013

Registration

SOR/2013-69 April 18, 2013

NUNAVUT WATERS AND NUNAVUT SURFACE RIGHTS TRIBUNAL ACT
NUNAVUT LAND CLAIMS AGREEMENT ACT

Nunavut Waters Regulations

P.C. 2013-375 April 18, 2013

Whereas the Minister of Indian Affairs and Northern Development has consulted with the Nunavut Water Board in accordance with paragraph 82(1)(f) of the Nunavut Waters and Nunavut Surface Rights Tribunal Act (see footnote a)

And whereas that Board has concurred with that Minister’s recommendation in accordance with subsection 82(2) of that Act;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Indian Affairs and Northern Development, pursuant to section 82 of that Act and section 8 of the Nunavut Land Claims Agreement Act (see footnote b), makes the annexed Nunavut Waters Regulations.

NUNAVUT WATERS REGULATIONS

INTERPRETATION

1. The following definitions apply in these Regulations.

“Act” means the Nunavut Waters and Nunavut Surface Rights Tribunal Act. (Loi)

“undertaking” means an appurtenant undertaking, or an undertaking in relation to a use of waters or deposit of waste for which a licence is not required, of a type set out in Schedule 1. (entreprise)

NUNAVUT LAND CLAIMS AGREEMENT

2. For greater certainty,

  • (a) the issuance by the Board of a type A or B licence, or the approval by the Board of an application for a use of waters or deposit of waste without a licence, constitutes an approval by the Board for the purposes of section 13.7.1 of the Agreement; and
  • (b) a use of waters or a deposit of waste without a licence that is described in section 4 or 5 is not authorized by these Regulations unless the Board has approved the use or deposit.

APPLICATION FOR APPROVAL OF USE OF WATERS OR DEPOSIT OF WASTE WITHOUT A LICENCE

3. An application for the approval of a use of waters or deposit of waste without a licence must be submitted to the Board and contain the following information:

  • (a) the applicant’s name, postal address and telephone number and their fax number and electronic mail address, if any;
  • (b) the name of the owner of any land that will be used in relation to the waters to be used or the waste to be deposited;
  • (c) the type of undertaking in respect of which waters will be used or waste will be deposited;
  • (d) the equipment that will be used in using the waters or depositing the waste;
  • (e) the location of the undertaking, including its geographical coordinates, if known, and the water management area in which the undertaking is located;
  • (f) in the case of an application for a use of waters,
    • (i) the purpose for which the waters will be used,
    • (ii) the quantity of water, in cubic metres, that will be used per day,
    • (iii) whether the use of the waters will involve watercourse crossing or training, and
    • (iv) the period or periods during which the waters will be used; and
  • (g) in the case of an application for a deposit of waste,
    • (i) the type of waste to be deposited,
    • (ii) the quantity of waste, in cubic metres, that will be deposited per day,
    • (iii) where the waste will be deposited,
    • (iv) any measures that will be taken to avoid or mitigate any adverse impacts, and
    • (v) the period or periods during which the waste will be deposited.

USE OF WATERS WITHOUT A LICENCE

4. (1) For the purposes of paragraph 11(2)(a) of the Act, a licence is not required for a use of waters that

  • (a) is of a type set out in column 2 of Schedule 2 that satisfies a criterion set out in column 3 in respect of an undertaking set out in column 1;
  • (b) would not substantially affect the quality, quantity or flow of the waters;
  • (c) would not substantially affect the quality, quantity or flow of waters flowing through Inuit-owned land; and
  • (d) would not adversely affect the use of waters by a person who would be entitled to compensation under section 58 or 60 of the Act if their use of those waters were to be adversely affected by an applicant for a licence.

(2) Despite subsection (1), no use of waters without a licence is authorized if a licence is required for another use of waters, or a deposit of waste, in respect of the same undertaking.

(3) No use of waters without a licence is authorized unless the following conditions are complied with:

  • (a) measures must be taken prior to using waters to minimize any alteration to the bed or banks of a watercourse whose waters are to be used, and the measures must be maintained during the operation of the undertaking;
  • (b) prior to the closure or abandonment of the undertaking or the end of the period authorized for the use of waters, whichever occurs first, the site must be restored — to the extent practicable — to the state in which it was before the waters were used; and
  • (c) in the case of a person who has a mineral right and who uses waters in relation to that right, the person must respect the priority conferred on Inuit by section 62 of the Act as if that person had a licence for the use.

(4) Despite paragraph (3)(b), a site need not be restored prior to the end of the period authorized for the use of waters without a licence if the Board issues a licence for a use of waters on that site prior to the end of that period.

(5) A use of waters without a licence is authorized for a period of one year after the day on which the Board approves the application for the approval of the use.

WASTE DEPOSIT WITHOUT A LICENCE

5. (1) For the purposes of paragraph 12(2)(a) of the Act, a licence is not required for a deposit of waste that

  • (a) satisfies a criterion set out in column 3 of Schedule 3 in respect of an undertaking set out in column 1 that is engaged in an activity set out in column 2;
  • (b) would not substantially affect the quality, quantity or flow of the waters in which it is deposited;
  • (c) would not substantially affect the quality, quantity or flow of waters flowing through Inuit-owned land; and
  • (d) would not adversely affect the use of waters by a person who would be entitled to compensation under section 58 or 60 of the Act if their use of those waters were to be adversely affected by an applicant for a licence.

(2) In the case of a deposit of waste that is discharged from a vessel within the meaning of section 2 of the Canada Shipping Act, 2001, a licence is not required if the deposit is not prohibited under Part 9 of that Act and satisfies paragraphs (1)(c) and (d).

(3) Despite subsection (1), no deposit of waste without a licence is authorized if a licence is required for another deposit of waste, or a use of waters, in respect of the same undertaking.

(4) No deposit of waste without a licence is authorized unless the following conditions are complied with:

  • (a) the waste must not be deposited to surface waters or within 31 m of the ordinary high water mark of any body of water;
  • (b) the waste must not contain more than 15 mg/L of petroleum or petroleum product and must not have a visible hydrocarbon sheen;
  • (c) prior to the closure or abandonment of the undertaking or the end of the period authorized for the deposit, whichever occurs first, the site must be restored — to the extent practicable — to the state in which it was before the waste was deposited; and
  • (d) in the case of a person who has a mineral right and who deposits waste in relation to that right, the person must respect the priority conferred on Inuit by section 62 of the Act as if that person had a licence for the deposit.

(5) Despite paragraph (4)(c), a site need not be restored prior to the end of the period authorized for the deposit without a licence if the Board issues a licence for a deposit of waste on that site prior to the end of that period.

(6) A deposit of waste without a licence is authorized for a period of one year after the day on which the Board approves the application for the approval of the deposit.

BOOKS AND RECORDS: USE OF WATERS OR DEPOSIT OF WASTE WITHOUT A LICENCE

6. (1) A person who is authorized under these Regulations to use waters or deposit waste without a licence must

  • (a) maintain accurate and detailed books and records of
    • (i) the quantity of water, in cubic metres, used each day,
    • (ii) the quantity of waste, in cubic metres, deposited each day,
    • (iii) the type of waste deposited each day,
    • (iv) where the waste is deposited,
    • (v) the concentration of the substance, or substances, in the deposited solid or liquid that has the effect of making the deposit waste,
    • (vi) the methodology used to calculate or determine the information referred to in subparagraphs (i) to (iv), and
    • (vii) the measures that were taken to avoid or mitigate any adverse impacts of the deposit of waste;
  • (b) keep the books and records on the site of the undertaking during the period of its operation and make them available during that period to an inspector on request;
  • (c) submit to the Board a report containing a summary description and supporting photographs of the restoration of the site of the undertaking within 30 days after the earlier of
    • (i) the day on which the undertaking is closed or abandoned, and
    • (ii) the last day of the period authorized for the use or deposit without a licence; and
  • (d) keep the books and records for two years after the day on which they submit the report describing the restoration of the site of the undertaking.

(2) Despite subparagraph (1)(c)(ii), a person need not submit a report to the Board if the person obtains the Board’s approval for a use of waters or deposit of waste without a licence, or a licence for a use of waters or a deposit of waste, on the same site within the period referred to in subparagraph (1)(c)(ii).

LICENSING CRITERIA FOR USE OF WATERS

7. (1) For the purposes of subsection 42(1) of the Act, the appropriate licence for a use of waters is

  • (a) a type B licence if
    • (i) the use is of a type set out in column 2 of Schedule 2 and satisfies a criterion set out in column 4 in respect of an undertaking set out in column 1, or
    • (ii) the use satisfies the criterion set out in paragraph 4(1)(a) but does not satisfy one or more criterion set out in paragraphs 4(1)(b) to (d); and
  • (b) a type A licence if the use is of a type set out in column 2 of Schedule 2 and satisfies a criterion set out in column 5 in respect of an undertaking set out in column 1.

(2) Despite paragraph 1(a), a type A licence is the appropriate licence for a use of waters if a type A licence is required for another use of waters, or a deposit of waste, in respect of the same undertaking.

(3) For the purposes of subsections 42(1) and (3) of the Act, a type B licence is the licence that the Board may issue for a use of waters described in subsection 4(1).

LICENSING CRITERIA FOR DEPOSIT OF WASTE

8. (1) For the purposes of subsection 42(1) of the Act, the appropriate licence for a deposit of waste is

  • (a) a type B licence if
    • (i) the deposit satisfies a criterion set out in column 4 of Schedule 3 in respect of an undertaking set out in column 1 that is engaged in an activity set out in column 2, or
    • (ii) the deposit satisfies the criterion set out in paragraph 5(1)(a) but does not satisfy one or more criterion set out in paragraph 5(1)(b) or (c); and
  • (b) a type A licence if the deposit meets a criterion set out in column 5 of Schedule 3 in respect of an undertaking set out in column 1 that is engaged in an activity set out in column 2.

(2) Despite paragraph 1(a), a type A licence is the appropriate licence for a deposit of waste if a type A licence is required for another deposit of waste, or a use of waters, in respect of the same undertaking.

(3) For the purposes of subsections 42(1) and (3) of the Act, a type B licence is the licence that the Board may issue for a deposit of waste described in subsection 5(1).

PUBLIC HEARINGS

9. (1) For the purposes of section 13.7.3 of the Agreement and subsection 52(1) of the Act, no public hearing is required in respect of an application for

  • (a) an amendment to a type A licence that does not affect the use, flow or quality of waters or alter the term of the licence;
  • (b) one or several renewals of a type A licence if the total duration of the renewal or renewals does not exceed 180 days;
  • (c) the assignment of a type A licence; or
  • (d) the issuance, amendment, renewal, assignment or cancellation of a type B licence.

(2) For the purposes of section 13.7.3 of the Agreement, no public hearing is required in respect of an application for a use of waters or deposit of waste without a licence.

SECURITY

10. (1) For the purposes of subsection 76(1) of the Act, the Board may fix the amount of security required to be furnished by an applicant for a licence, a licensee or a prospective assignee in an amount not exceeding the aggregate of

  • (a) the costs of the abandonment of the undertaking;
  • (b) the costs of the restoration of the site of the undertaking;
  • (c) the costs of any ongoing measures that may remain to be taken after the abandonment of the undertaking; and
  • (d) the compensation that a person, including the designated Inuit organization, who is adversely affected by the use of waters or deposit of waste may be entitled to under section 13 of the Act.

(2) In fixing an amount of security, the Board may have regard to

  • (a) the ability of the applicant, licensee or prospective assignee to pay the costs referred to in subsection (1); or
  • (b) the past performance by the applicant, licensee or prospective assignee in respect of any other licence.

(3) Security must be in the form of

  • (a) a promissory note guaranteed by a bank listed in Schedule I or II to the Bank Act and made payable to the Receiver General;
  • (b) a certified cheque drawn on a bank listed in Schedule I or II to the Bank Act and made payable to the Receiver General;
  • (c) a performance bond approved by the Treasury Board for the purposes of paragraph (c) of the definition “security deposit” in section 2 of the Government Contracts Regulations;
  • (d) an irrevocable letter of credit from a bank listed in Schedule I or II to the Bank Act; or
  • (e) a cash payment.

FEES

11. A fee of $30 is payable on the submission of an application for a licence, an application for the amendment, renewal, cancellation or assignment of a licence or an application under section 77 of the Act.

12. (1) Subject to subsections (4) to (6), the fee payable by a licensee for the right to use waters, calculated on an annual basis, is

  • (a) in respect of an agricultural undertaking, the greater of
    • (i) $30, and
    • (ii) $0.15 for each 1 000 m3 that is authorized by the licence;
  • (b) in respect of an industrial or mining undertaking, or the undertaking set out in item 8, column 1 of Schedule 1, the greater of $30 and the aggregate of
    • (i) for the first 2 000 m3 per day that is authorized by the licence, $1 for each 100 m3 per day,
    • (ii) for any quantity greater than 2 000 m3 per day but less than or equal to 4 000 m3 per day that is authorized by the licence, $1.50 for each 100 m3 per day, and
    • (iii) for any quantity greater than 4 000 m3 per day that is authorized by the licence, $2 for each 100 m3 per day; and
  • (c) in respect of a power undertaking,
    • (i) for a Class 0 power undertaking, nil,
    • (ii) for a Class 1 power undertaking, $1,500,
    • (iii) for a Class 2 power undertaking, $4,000,
    • (iv) for a Class 3 power undertaking, $10,000,
    • (v) for a Class 4 power undertaking, $30,000,
    • (vi) for a Class 5 power undertaking, $80,000, and
    • (vii) for a Class 6 power undertaking, $90,000 for the first 100 000 kW of authorized production and $1,000 for each 1 000 kW of authorized production in excess of 100 000 kW.

(2) For the purposes of paragraph (1)(b), if a licence authorizes a use of waters on a basis other than a daily basis, the licence fee payable must be calculated by converting the rate of authorized use to an equivalent daily rate.

(3) If the volume of water is specified in a licence to be total watercourse flow, the licence fee must be calculated using the mean daily flow of the watercourse, calculated on an annual basis.

(4) Licence fees are payable only for the portion of the year during which the licence is in effect.

(5) No licence fees are payable in respect of a diversion of waters where the waters are not otherwise used.

(6) No licence fees are payable for the right to the use of waters on, in or flowing through Inuit-owned lands.

(7) Licence fees shall be paid or, in the case of an initial payment, deducted from the deposit

  • (a) in respect of a licence for a term of one year or less, at the time the licence is issued; and
  • (b) in respect of a licence for a term of more than one year,
    • (i) for the first year of the licence, at the time the licence is issued, and
    • (ii) for each subsequent year of the licence, and for any portion of the final year of the licence, on the anniversary of the date of issuance of the licence.

BOOKS AND RECORDS

13. A licensee must

  • (a) maintain accurate and detailed books and records of
    • (i) the quantity of water, in cubic metres, used each day,
    • (ii) the quantity of waste, in cubic metres, deposited each day,
    • (iii) the type of waste deposited each day,
    • (iv) the concentration of the substance, or substances, in the deposited solid or liquid that has the effect of making the deposit waste, and
    • (v) the methodology used to calculate or determine the information referred to in subparagraphs (i) to (iv);
  • (b) keep the books and records on the site of the appurtenant undertaking during the period of its operation or until the expiry or cancellation of the licence; and
  • (c) keep the books and records for a period of at least five years after the expiry or cancellation of the licence.

ANNUAL REPORT

14. (1) A licensee must submit an annual report to the Board, in a form acceptable to the Board, by March 31 of each year. The report must contain the following information in respect of the previous calendar year:

  • (a) the licensee’s name and licence number;
  • (b) the quantity of water, in cubic metres, used by the licensee, the source of the water and the purpose of its use;
  • (c) the quantity, in cubic metres, and type of waste deposited by the licensee and the location of the deposit, including its geographical coordinates;
  • (d) the concentration of the substance, or substances, in the deposited solid or liquid that has the effect of making the deposit waste;
  • (e) the measures that were taken to avoid or mitigate any adverse impacts of the deposit of waste;
  • (f) a summary of any maintenance, modification or construction of a work that forms part of the appurtenant undertaking;
  • (g) if the appurtenant undertaking was abandoned, a summary description and supporting photographs of the site of the undertaking at the time of its abandonment;
  • (h) if the site of the appurtenant undertaking was restored, a summary description and supporting photographs of the restoration;
  • (i) a summary of any study or monitoring program undertaken, any data collected under the study or program, any work constructed and any plan submitted pursuant to paragraph 70(1)(c) of the Act;
  • (j) a summary of any changes made to operation and maintenance plans in respect of any work that forms part of the appurtenant undertaking; and
  • (k) a summary of any measures taken in response to a direction given by an inspector under section 87 of the Act.

(2) The report must be signed and dated by

  • (a) the licensee, if the licensee is an individual; or
  • (b) an authorized agent of the licensee, if the licensee is not an individual.

(3) On application in writing by a licensee, the Board may extend the period for submitting an annual report for a period of up to 60 days if the Board is satisfied that an extension is justified in the circumstances.

(4) Within 90 days after the day of the expiry or cancellation of a licence, the licensee must submit a report to the Board — in a form acceptable to the Board and signed and dated by the person referred to in subsection (2) — that contains the information set out in subsection (1) in respect of the current calendar year.

PUBLIC REGISTER

15. (1) The register referred to in section 78 of the Act must be in printed or electronic form and contain

  • (a) a copy of each application and all documents received or provided by the Board in respect of the application;
  • (b) all records in respect of any public hearing held in connection with the application;
  • (c) all documents received or provided by the Board in respect of compliance with the conditions of a licence or the conditions imposed on the use of waters or deposit of waste without a licence; and
  • (d) all documents received or provided by the Board in respect of the cancellation of a licence.

(2) Despite paragraph (1)(a), a document received by the Board in respect of an application does not need to be kept in the register if an Act of Parliament requires that the document be kept in a registry maintained by the Nunavut Planning Commission or the Nunavut Impact Review Board.

REPORTING OF UNAUTHORIZED DEPOSIT OF WASTE

16. (1) For the purposes of subsection 12(3) of the Act, a person who reports a deposit of waste that is not authorized by a licence or these Regulations must report the location, date and nature of the deposit

  • (a) to an inspector, in person or by telephone or electronic mail; and
  • (b) to any emergency spill notification service of the Nunavut government, by telephone, fax or electronic mail.

(2) Information that is reported in person or by telephone must also be reported in writing to an inspector without delay.

WATER MANAGEMENT AREAS

17. (1) Each watershed shown on the map set out in Schedule 4 is established as a water management area.

(2) The boundaries of each watershed are described in the document entitled Nunavut Watersheds Descriptions dated December 1, 2010, and deposited with the Board by the Assistant Deputy Minister, Northern Affairs Organization, Department of Indian Affairs and Northern Development.

(3) Any part of a watershed described in the document referred to in subsection (2) that is a marine area does not form part of a water management area.

(4) The Board must make the document referred to in subsection (2) available to the public.

COMING INTO FORCE

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

SCHEDULE 1
(Section 1 and paragraph 12(1)(b))

CLASSIFICATION OF UNDERTAKINGS

Item

Column 1

Type of Undertaking

Column 2

Description of Undertaking

1.

Industrial undertaking

Manufacturing processes, hydrostatic testing, quarrying and gravel washing, petroleum and gas exploration, the production, processing, refining or storage of petroleum, petroleum products or gas, cooling systems, food processing, tanneries, the smelting or refining of minerals, metal finishing, the restoration of the site of an industrial undertaking and any other industrial activity

2.

Mining undertaking

Exploration or prospecting — including bulk sampling — for minerals other than petroleum or gas, the operation of a mine, the processing of minerals other than petroleum or gas, the restoration of the site of a mine and any other mining activity other than an industrial activity described in item 1, column 2

3.

Municipal undertaking

A waste disposal or water system for a municipality

4.

Power undertaking

Authorized hydro, geothermal or nuclear electrical generation of

(a) Class 0

150 kW or less per day

(b) Class 1

More than 150 kW per day but less than 5 000 kW per day

(c) Class 2

5 000 kW or more per day but less than 10 000 kW per day

(d) Class 3

10 000 kW or more per day but less than 20 000 kW per day

(e) Class 4

20 000 kW or more per day but less than 50 000 kW per day

(f) Class 5

50 000 kW or more per day but less than 100 000 kW per day

(g) Class 6

100 000 kW or more per day

5.

Agricultural undertaking

Nourishing crops or providing water for livestock

6.

Conservation undertaking

Works for the preservation, protection or improvement of the natural environment

7.

Recreational undertaking

A commercial or public recreational development, including camps and tourist lodges

8.

Other undertaking

Research projects and any undertaking other than an undertaking set out in any of items 1 to 7

SCHEDULE 2
(Paragraph 4(1)(a), subparagraph 7(1)(a)(i) and paragraph 7(1)(b))

LICENSING CRITERIA FOR USE OF WATERS

Item

Column 1



Type of Undertaking

Column 2



Type of Water Use

Column 3


Water Use Authorized Without Licence

Column 4


Water Use Requiring Type B Licence

Column 5

Water Use Requiring Type A Licence

1.

Power undertaking

Use of waters for authorized hydro, geothermal or nuclear electrical generation

None

Class 0

Classes 1 to 6

2.

Any undertaking other than a power undertaking

(1) Any use of water related to the construction of watercourse crossings

Any use of waters related to the construction of a structure across a watercourse that is less than 5 m wide at the ordinary high water mark at the point of construction

Any use of waters related to the construction of a structure across a watercourse that is 5 m or more wide at the ordinary high water mark at the point of construction

None

 

(2) Any use of waters related to watercourse training

  • (a) any use of waters related to the training of an intermittent watercourse

  • (b) any use of water related to the training of a watercourse that is less than 5 m wide at the ordinary high water mark at the point of training

  • (c) any use of water related to the training of a watercourse that involves the infilling of the watercourse, if the watercourse has no inflow or outflow and a surface area of less than 0.5 hectares

  • (d) any use of water related to the training of a watercourse that involves removal or placement of less than 100 m3 of material

Any use of waters related to any other watercourse training

None

 

(3) Any use of waters related to the alteration of flow of waters, or storage of waters, by means of dams or dikes

  • (a) any use of waters related to the construction of a temporary structure in a watercourse for the purpose of flood control

  • (b) any use of water related to the storage of less than 2 500 m3

  • (a) any use of waters related to the storage of 2 500 m3 or more but less than 60 000 m3

  • b) any use of waters related to a temporary alteration of the flow of waters

  • (c) any use of waters related to the construction of a permanent structure in a watercourse for the purpose of flood control

  • (a) any use of waters related to the storage of 60 000 m3 or more

  • (b) any use of waters related to a permanent alteration of the flow of waters

 

(4) Any other use of waters

Use of less than 50 m3 per day

Use of 50 m3 or more but less than 300 m3 per day

Use of 300 m3 or more per day

SCHEDULE 3
(Paragraph 5(1)(a), subparagraph 8(1)(a)(i) and paragraph 8(1)(b))

LICENSING CRITERIA FOR DEPOSIT OF WASTE

Item

Column 1




Type of Undertaking

Column 2





Activity

Column 3

Deposit of Waste Authorized Without Licence

Column 4



Deposit of Waste Requiring Type B Licence

Column 5


Deposit of Waste Requiring Type A Licence

1.

Industrial undertaking

(a) petroleum or gas exploration

None

Deposit of drill waste to a sump or by injection, authorized under paragraph 5(1)(b) of the Canada Oil and Gas Operations Act, into an underground formation or reservoir

Any other deposit of drill waste

 

(b) production, processing or refining of petroleum, petroleum products or gas

None

None

All deposits of waste

 

(c) storage of petroleum, petroleum products or gas

Any deposit of waste to a sump

Any other deposit of waste

None

 

(d) hydrostatic testing or cleaning of storage tanks or pipelines

Any deposit of waste resulting from hydrostatic testing or cleaning of unused storage tanks or pipelines

Any deposit of waste resulting from hydrostatic testing or cleaning of used storage tanks or pipelines

None

 

(e) quarrying and gravel washing

Any deposit of waste that is not made to surface water and that results from quarrying or gravel washing above the ordinary high water mark

Any deposit of waste resulting from quarrying or gravel washing below the ordinary high water mark

None

 

(f) any other industrial activity

None

Any deposit of waste

None

2.

Mining undertaking

(a) exploratory work

Any deposit of sewage to a sump

Any other deposit of waste

None

 

(b) any other mining activity

None

Any deposit of waste resulting from any other mining activity, including bulk sampling, that uses less than 300 m3 of water per day

Any deposit of waste resulting from any other mining activity, including bulk sampling, that uses 300 m3 or more of water per day

3.

Municipal undertaking

Any activity

None

Any deposit of waste if the water system for the municipality uses less than 300 m3 of water per day

Any deposit of waste if the water system for the municipality uses 300 m3 or more of water per day

4.

Power undertaking

Any activity

Any deposit of sewage to a sump

Any other deposit of waste

None

5.

Agricultural undertaking

Any activity

Any deposit of sewage to a sump

Any other deposit of waste

None

6.

Conservation undertaking

Any activity

Any deposit of sewage to a sump

Any other deposit of waste

None

7.

Recreation undertaking

Any activity

Any deposit of sewage to a sump

Any other deposit of waste

None

8.

Other undertaking

Any activity

Any deposit of sewage to a sump

Any other deposit of waste

None

SCHEDULE 4

(Subsection 17(1))

WATER MANAGEMENT AREAS
Map, Detailed information can be found in the surrounding text.
  1. Seal Watershed
  2. Thlewiaza Watershed
  3. Geillini Watershed
  4. Tha-anne Watershed
  5. Thelon Watershed
  6. Dubawnt Watershed
  7. Kazan Watershed
  8. Baker Lake Watershed
  9. Quoich Watershed
  10. Chesterfield Inlet Watershed
  11. Maguse Watershed
  12. Ferguson Watershed
  13. Wilson Watershed
  14. Lorillard Watershed
  15. Wager Bay Watershed
  16. Hudson Bay Islands Watershed (includes all the islands within Hudson Bay and James Bay that are not part of Manitoba, Ontario or Quebec)
  17. Northern Southampton Island Watershed
  18. Repulse Bay Watershed
  19. Barrow Watershed
  20. Kingora Watershed
  21. Gifford Watershed
  22. MacDonald Watershed
  23. Prince Charles Island Watershed
  24. Koukdjuak Watershed
  25. Aukpar Watershed
  26. Great Bear Watershed
  27. Amundsen Gulf Watershed
  28. Coppermine Watershed
  29. Coronation Gulf Watershed
  30. Queen Maud Gulf Watershed
  31. Back Watershed
  32. Back-Hayes (Nunavut) Watershed
  33. Rasmussen Basin – Larsen Sound Watershed
  34. Gulf of Boothia Watershed
  35. Northwestern Victoria Island Watershed
  36. Hadley Bay Watershed
  37. Eastern Victoria Island Watershed
  38. Southern Victoria Island Watershed
  39. Prince Albert Sound Watershed
  40. Minto Inlet Watershed
  41. King William Island Watershed
  42. Western Prince of Wales Island Watershed
  43. Eastern Prince of Wales Island Watershed
  44. Western Somerset Island Watershed
  45. Eastern Somerset Island Watershed
  46. Western Brodeur Peninsula Watershed
  47. Admiralty Inlet Watershed
  48. Eclipse Sound Watershed
  49. Southwestern Baffin Bay Watershed
  50. Northwestern Davis Strait Watershed
  51. Northern Cumberland Sound Watershed
  52. Southern Cumberland Sound Watershed
  53. Frobisher Bay Watershed
  54. Melville Island Watershed
  55. Bathurst and Cornwallis Islands Watershed
  56. Western Devon Island Watershed
  57. Eastern Devon Island Watershed
  58. Sverdrup Islands Watershed
  59. Nansen and Eureka Sounds Watershed
  60. Greely Fiord Watershed
  61. Arctic Ocean and Lincoln Sea Watershed
  62. Northeastern Ellesmere Island Watershed
  63. Southeastern Ellesmere Island Watershed
  64. South Ellesmere Island Watershed
  65. Hudson Strait Watershed (North and West) (includes all the islands in the area that are not part of Quebec)

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue

A set of Nunavut-specific regulations which reflect the administrative realities of the territory is required. The currently applicable Northwest Territories Waters Regulations have deficiencies (i.e. section 5 which does not apply in Nunavut as it is inconsistent with the Nunavut Land Claims Agreement) and do not completely realize the water management, operational, and administrative realities in Nunavut. Further, the Northwest Territories Waters Regulations as they apply in Nunavut do not support streamlining of the regulatory system.

Background

In Nunavut, the Nunavut Land Claims Agreement (the Agreement) sets out the process and establishes resource management boards for the sustainable and responsible management of water resources in Nunavut. Specifically, the Nunavut Water Board was established pursuant to the Agreement, and must authorize all uses of water or deposits of waste into water with the exception of domestic and emergency use.

The Nunavut Waters and Nunavut Surface Rights Tribunal Act (the Act) confirms Her Majesty in right of Canada’s responsibility for water resources in Nunavut. The Act provides a more prescriptive outline of the water management processes in Nunavut and allows for the development of Nunavut-specific regulations consistent with the Agreement.

The Northwest Territories Waters Regulations have been adopted since the creation of Nunavut and will continue to apply in Nunavut until such time as Nunavut-specific waters regulations are developed and implemented. The Northwest Territories Waters Regulations apply with the exception of section 5 (which allows for the use of water or deposit of waste without an application or licence in the Northwest Territories [NWT]) as this is inconsistent with the intent of the Agreement, which states all uses of water or deposits of waste must be approved by the Nunavut Water Board. The current Nunavut water management regime (under the Northwest Territories Waters Regulations) prescribes two types or levels of water licences. Type “B” water licences are for smaller thresholds of water use and waste deposit. Examples of such licences would be (but are not limited to) small camps for grassroots mineral exploration to the bulk sample stage of mineral exploration. Type “A” water licences are for larger water uses and deposit of waste, such as large communities and mining activities.

The Nunavut Waters Regulations were developed jointly with parties who have a responsibility or interest in the management of water resources in Nunavut. This included representatives from the Nunavut Water Board, Nunavut Tunngavik Incorporated, the Government of Nunavut and Aboriginal Affairs and Northern Development Canada.

Objectives

To develop a set of water regulations for Nunavut that take into consideration the specific circumstances of the territory and respect the provisions of the Agreement, and to streamline the current process in order to improve regulatory efficiencies.

In Nunavut, the Northwest Territories Waters Regulations are in force until they are replaced by the Nunavut Waters Regulations.

Description

In developing regulations, each regulation-making authority of the Act was considered and analyzed. This included multijurisdictional analyses of other provincial regulations and standards, as well as current operating practices in Nunavut, the Northwest Territories and Yukon. In the interest of consistency and aligning Northern legislation, the Northwest Territories Waters Regulations were used as a template. Although much of the Nunavut Waters Regulations remain the same as the Northwest Territories Waters Regulations, there are five main areas of change, including

  • (1) Addition of an authorized use of water or deposit of waste regime, with changes to the minimum threshold for an authorized use of water and/or deposit of waste;
  • (2) Changes to the scheme of schedules relating to use of water and deposit of waste;
  • (3) Establishment of new water management areas;
  • (4) Providing clarity to annual reporting and maintaining books and records, and spill reporting;
  • (5) Language consistent with the Agreement.
Addition of an authorized use of water or deposit of waste regime, with changes to the minimum threshold for an authorized use of water and/or deposit of waste

In Nunavut, the Northwest Territories Waters Regulations applied with the exception of section 5, which prescribes a minimum threshold for water use without a licence of 100 m3. Section 5 of the Northwest Territories Waters Regulations did not apply in Nunavut due to an inconsistency with the Agreement which provides that, except for domestic and emergency use, all water uses and deposits of waste into water in the Nunavut Settlement Area must be approved by the Nunavut Water Board. The intent of the Agreement is to ensure all users of water and disposers of waste are tracked and known by regulators, so as to mitigate and prevent the occurrence of adverse environmental effects.

Thresholds for authorized water use or waste deposit in the Nunavut Waters Regulations correlate to activities that do not have the potential to cause significant adverse environmental effects. Such activities include construction of small water course crossings, small water course training activities, construction of temporary structures for the purposes of flood control, small storages of water, small camps, grass roots exploration, hydrostatic testing of unused storage tanks, or any other activities using less than 50 m3/day.

The Nunavut Waters Regulations govern the authorized use of water or deposit of waste; the terms and conditions that persons who qualify for an authorized use or deposit must comply with are described in the Regulations. For purposes of enforcement, an authorized user who carries out activities that are not permitted by the Regulations will be guilty of a contravention of the Act.

An applicant for an authorized use of water or deposit of waste must submit an application to the Nunavut Water Board containing the information set out in the Regulations. These applications are not subject to a public notice/review period and the Nunavut Water Board will be able to authorize uses of water or deposits of waste, if the application meets the requirements prescribed by the Regulations.

Changes to the format of schedules relating to use of water and deposit of waste

The format of the schedules has changed in the Nunavut Waters Regulations to condense the number of schedules from eight (in the Northwest Territories) to four. The four schedules in the Nunavut Waters Regulations are (1) Classification of Undertakings, (2) Licensing Criteria for the Use of Waters, (3) Licensing Criteria for the Deposit of Waste, and (4) Water Management Areas. The reformatting allows for a more comprehensive presentation of information.

Establishment of new water management areas

The Nunavut Waters Regulations prescribe 65 water management areas. This differs from the four very large management areas defined in the Northwest Territories Waters Regulations. The water management area boundaries are based on the Atlas of Canada and Water Survey Canada contouring. Approaching water management from a smaller watershed viewpoint assists in the protection of water quality and the assessment of cumulative effects. This approach to smaller water management areas provides a useful tool towards the future development of water management strategies and water management areas-based regulation of water in Nunavut. Additionally, the implementation of more localized water management areas is important to better support coordination with land use planning in Nunavut which is presently underway.

Providing clarity to annual reporting and maintaining books and records, and spill reporting

The Northwest Territories Waters Regulations require that books and records are maintained and annual reports are submitted. However, they are not sufficiently detailed concerning the information that is to be maintained in books and records and submitted with annual reports. This could result in non-compliance where reports are not submitted on time and in sufficient detail. The Nunavut Waters Regulations prescribe for both authorized users and licensees what information should be maintained in books in records, how long the information should be retained for, and where the information should be kept. The Nunavut Waters Regulations provide under some circumstances that authorized users need not submit a report (i.e. if another authorization or a licence is approved for the same site), but that books and records must be maintained. The Nunavut Waters Regulations also give the Nunavut Water Board the ability to allow short-term extensions to licensees for the submission of annual reports.

The Northwest Territories Waters Regulations do not address spill reporting. However, in Nunavut, the Government of Nunavut and water legislation (Environmental Protection Act and Nunavut Waters and Nunavut Surface Rights Tribunal Act) require that spills or unauthorized discharges of waste must be reported. The Nunavut Waters Regulations provide clarity as to what information is to be included in such a report, to whom it should be reported, and the manner in which it should be reported.

Language consistent with the Agreement

The language in the Nunavut Waters Regulations ensures consistency with the Nunavut Land Claims Agreement. For example, paragraph 5(1)(c) states that a licence is not required for a deposit of waste that would not substantially affect the quality, quantity or flow of waters flowing through Inuit-owned land.

“One-for-One” Rule

The proposal results in a decrease in administrative burden on business and results in an OUT under the “One-for-One” Rule.

The administrative burden will be lessened as the application process will be much simpler and have fewer requirements than a Type “B” water licence application. For instance, there will only be one form that a proponent must fill out. This form is less onerous than a Type “B” water licence application (i.e. it does not need to be accompanied by an executive summary and translated, and the application does not need to be posted for public comment and review). The average annualized savings for each stakeholder is projected to be approximately $544.00. The average annual savings for all stakeholders is projected to be $27,201.

Small business lens

The small business lens does not apply to this proposal, as there are no costs (or insignificant costs) on small business.

Consultation

Aboriginal Affairs and Northern Development Canada participated in three levels of consultations. These include

  • Consultations conducted by the Nunavut Water Board, to fulfill requirements of the Nunavut Waters and Nunavut Surface Rights Tribunal Act (Nunavut Water Board public hearing process).
  • May–June 2011 and September 2011
  • Close consultations with Nunavut Tunngavik Incorporated
  • On various occasions throughout the development of the Nunavut Waters Regulations, Aboriginal Affairs and Northern Development Canada consulted closely with Nunavut Tunngavik Incorporated as required under Article 2.6.1 of the Agreement. Officials from Nunavut Tunngavik Incorporated attended development group meetings as observers, and senior officials from both organizations met on a number of instances to discuss the Regulations.
  • Consultations with interested stakeholders and the public
  • Via mailout from Aboriginal Affairs and Northern Development Canada to affected stakeholders, November 23, 2011.

The following issues have been raised as a result of all forms of public consultations and responses are provided below.

Identifying concerns
I. Security — Double-bonding and compensation
Double-bonding
  • Financial securities are taken by land owners and agencies responsible for freshwater resources to ensure that the costs of reclamation are born by the operator of the mine rather than the Crown or land owner.
  • In Nunavut, there are multiple land owners (i.e. the Crown and regional Inuit associations) and the Crown is responsible for all freshwater resources.
  • Double-bonding exists when the security held pursuant to land and water instruments by multiple parties in respect of the same undertaking overlaps and exceeds the total amount required to reclaim the site of the undertaking.
  • The Nunavut Water Board strongly recommended to the Minister of Indian Affairs and Northern Development that Aboriginal Affairs and Northern Development Canada, in consultation with stakeholders, be directed to establish a process, including a firm timetable, to address the issue of security doublebonding in Nunavut. The Nunavut Water Board further recommended that any such solution be Nunavut-specific. This issue was also raised by Nunavut Tunngavik Incorporated.
Response

With respect to double-bonding, throughout the public hearing process, Aboriginal Affairs and Northern Development Canada conveyed that it intends to maintain the status quo while it explores options to address the broader issues of security. The Nunavut Water Board’s reasons recognized and rationalized Aboriginal Affairs and Northern Development Canada’s publicly conveyed approach to addressing issues related to reclamation security. The Nunavut Water Board stated (based on operational experience) that “it is the Board’s discretion to lower the security required under the current regulatory regime, and the complexity of an express regulatory solution, on balance the Board believes that accepting the status quo on security in order to move forward with implementing the positive changes in the Nunavut Waters Regulations, such as authorizations for minimal uses without a licence and establishing water management areas, is the preferable course of action.” On November 23, 2011, Aboriginal Affairs and Northern Development Canada officially responded to the Nunavut Water Board’s reasons confirming that the Department is currently working towards a solution to security issues, and that it will consider a Nunavut-specific approach. In conclusion, it is Aboriginal Affairs and Northern Development Canada’s intent to address the issue of reclamation security in a broader context, recognizing that potential solutions may include future changes to the legislation, but may also involve avenues that do not require amendments to the legislation (i.e. development of codes of practice, guidelines, policy).

Security — Compensation
  • Nunavut Tunngavik Incorporated raised the concern over a mismatch of criteria in section 10 of the Nunavut Waters Regulations to provisions in the old Northern Inland Waters Act (NIWA). The NIWA and the Nunavut Waters and Nunavut Surface Rights Tribunal Act allow for the Nunavut Water Board to consider setting security for compensation matters.
  • It was suggested that the criteria for setting security in the Nunavut Waters Regulations (section 10) should be changed to allow the Nunavut Water Board to include consideration of compensation claims when setting security.
Response

Concerning the mismatch of compensation criteria issue, Aboriginal Affairs and Northern Development Canada has made the appropriate changes to the Nunavut Waters Regulations to accommodate Nunavut Tunngavik Incorporated’s concern.

II. Water use fees
  • The Nunavut Water Board recommended that the Minister of Indian Affairs and Northern Development consider commencing a review of water-related fees in Nunavut in accordance with the requirements of the User Fees Act. To adequately reflect Nunavut-specific issues, the review should give consideration to the objective of water conservation and Inuit values, as well as consider the varying complexity of licence applications and the wide range in the scale and scope of projects in Nunavut.
Response

The fee structure proposed by the Nunavut Water Regulations is exactly the same as the fees prescribed by the Northwest Territories Waters Regulations which currently apply in Nunavut.

Aboriginal Affairs and Northern Development Canada replied to the Nunavut Water Board (November 23, 2011, letter to the Board) that it will consider undertaking a review of water-related fees in Nunavut in accordance with the User Fees Act. However, due to the process involved in undertaking such a review, it could not be undertaken in an expeditious manner. In the interest of implementing the positive changes in the Nunavut Waters Regulations, Aboriginal Affairs and Northern Development Canada does not anticipate that changes will be made to the existing fee structure at this time.

  • The Kivalliq Inuit Association and Nunavut Tuungavik Incorporated identified an issue with section 12 of the Nunavut Waters Regulations which establish water use fees payable to the Crown. The Kivalliq Inuit Association identified that these fees have the potential to interfere with Designated Inuit Organization exclusive right to water use on, in or flowing through Inuit-owned land pursuant to Article 20.2.2 of the Agreement.
Response

During the public hearings, Aboriginal Affairs and Northern Development Canada committed to addressing this issue prior to the prepublication of the Nunavut Waters Regulations. Subsection 12(6) of the Nunavut Waters Regulations has been subsequently reviewed to accommodate the concern of Nunavut Tuungavik Incorporated and the Kivalliq Inuit Association.

III. Threshold for water use without a licence (50 m3)
  • Industry felt the threshold is too low. Thus, any drilling activities would likely require a licence. Industry recommended retaining the NWT threshold of 100 m3.
Response

As described above, the thresholds reflected in the water use and waste disposal thresholds for authorized users in the Nunavut Waters Regulations have been developed to correlate with activities that will not cause significant environmental affects.

On December 8, 2012, this proposal was prepublished in the Canada Gazette, Part I, for a 30-day consultation period. Comments from three mining exploration companies (Prosperity Goldfields, Kivalliq Energy Corporation and Westmelville Metals Inc.) and a joint submission from the NWT and Nunavut Chamber of Mines, the Prospectors and Developers Association of Canada and the Mining Association of Canada were received. Each of the four submissions echoed the same two comments:

  • Double- or over-bonding of reclamation security; and
  • Threshold for use of water without a licence (50 cubic metres).

These comments were previously identified and addressed by Aboriginal Affairs and Northern Development Canada during the Nunavut Water Boards public hearing process. However, the following responses were provided:

Response to double- or over-bonding of reclamation security

Aboriginal Affairs and Northern Development Canada is currently working with responsible parties including the Regional Inuit Associations to explore a timely and effective resolution to this very important issue. It is the Department’s intent to address the issue of reclamation security in a broader context than the Nunavut Waters Regulations, recognizing that potential solutions may include future changes to legislation, but may also involve avenues that do not require amendments to legislation (i.e. development of codes of practice, guidelines, policy).

Response to thresholds for use of water without a licence (50 cubic metres)

All commenters wanted the threshold in the proposed Regulations for water use without a licence to be raised from 50 cubic metres to 100 cubic metres, as 100 cubic metres is the threshold in the Northwest Territories Waters Regulations. Aboriginal Affairs and Northern Development Canada recognizes that other Northern legislation allows for the threshold of 100 cubic metres for water use without a licence. The Nunavut Waters Regulations were developed jointly by parties who have a responsibility or interest in the management of water resources in Nunavut. This included the Nunavut Water Board, the Government of Nunavut, Nunavut Tunngavik Incorporated and Aboriginal Affairs and Northern Development Canada. The Northwest Territories Waters Regulations applied in Nunavut with the exception of section 5, which allows the 100 cubic metre use of waters without a licence in the Northwest Territories. This condition did not apply in Nunavut as it is inconsistent with the Nunavut Land Claims Agreement. The joint development of Nunavut-specific waters regulations was guided by the objective to develop regulations that take into consideration the specific circumstances of the territory and realize the water management, operational, and administrative realities in Nunavut. The Nunavut Waters Regulations introduce a threshold for the deposit of waste authorized without a licence where previously there had been none and all applications were subject to at least a Type “B” licence. The intent of the introduced thresholds is to provide some relief of administrative burden to stakeholders while remaining consistent with the intent of the Nunavut Land Claims Agreement. The Regulations therefore expressly limit the use of deposit of waste authorized without a licence to “deposit of sewage into sumps.” The threshold for water use authorized without a licence is 50 cubic metres. Even with these limitations, there is significant burden reduction for applicants. An analysis of all water licence applications received during 2006 (this was viewed as a typical year for water licence applications in Nunavut) shows that roughly 35% of all applications would qualify for an authorized use of water or deposit of waste without a licence under the currently proposed regime. A review will be conducted five years following the registration of the Regulations to ensure the Regulations are meeting their intended purpose. With this in mind, and given the array of water licence applicants in Nunavut, Aboriginal Affairs and Northern Development Canada is confident the selected thresholds correlate with activities that will not cause significant environmental effects and are consistent with the water management, operational and administrative realities in Nunavut.

Rationale

The Nunavut Waters Regulations were developed jointly by parties with water responsibilities or interest in Nunavut. This included representatives from the Nunavut Water Board, Aboriginal Affairs and Northern Development Canada, Nunavut Tunngavik Incorporated and the Government of Nunavut.

The Nunavut Waters Regulations

  • identify and address deficiencies of the application of the Northwest Territories Waters Regulations in Nunavut;
  • reflect and conform to the water management, operational and administrative realities in Nunavut;
  • provide a consistent, transparent approach to defining thresholds set for types of water licences; and
  • provide for a streamlined efficient approach to allow for authorized uses of water and/or deposits of waste without a licence.

The Regulations represent an appropriate balance of views and preferences of all interested parties, consistent with operational, scientific, technological, economic and social considerations.

Implementation, enforcement and service standards

Aboriginal Affairs and Northern Development Canada is committed to continuing to work with the Nunavut Water Board to develop the necessary guidance documentation in advance of the registration of the Regulations.

The Nunavut Waters Regulations came into force on the day on which they were registered. At the time of registration, letters were sent out to all those organizations contacted during the information and consultation process to inform them of the coming into force of the Regulations.

To date, the Nunavut Water Board and Aboriginal Affairs and Northern Development Canada have commenced work on guidance documents to assist in the interpretation and implementation of the Regulations. This work has been continued by the Nunavut Water Board, who has the operational experience to undertake the development of effective materials. Cooperatively, Aboriginal Affairs and Northern Development Canada and the Nunavut Water Board will continue to finalize an implementation needs assessment and necessary guidance material prior to registration of the Nunavut Waters Regulations.

Additionally, implementation of the Regulations may involve the distribution of a fact sheet and a summary description, and coordination meetings, as required, with relevant and responsible institutions (i.e. Nunavut Water Board, Aboriginal Affairs and Northern Development Canada enforcement departments) to ensure there are no losses or reductions in the rigour of the evaluation and regulatory review processes or monitoring, and enforcement.

To evaluate the appropriateness and effectiveness of the Nunavut Waters Regulations a review will be conducted five years following the registration of these Regulations to ensure the Regulations meet the intended purpose of improving regulatory efficiency and meeting the operational, economic and administrative realities in Nunavut.

Contacts

  • Gilles Binda
    Senior Advisor
    Resource Policy and Programs
    Natural Resources and Environment Branch
    Northern Affairs Organization
    15 Eddy Street, Room 10D13
    Gatineau, Quebec
    K1A 0H4
    Telephone: 819-934-7513

  • Tanya Trenholm
    Senior Analyst
    Water Policy
    Land and Water Management
    Natural Resources and Environment Branch
    Northern Affairs Organization
    15 Eddy Street, Room 10D13
    Gatineau, Quebec
    K1A 0H4
    Telephone: 819-934-9401