Order Amending Schedule 3 to the Nunavut Planning and Project Assessment Act: SOR/2022-118
Canada Gazette, Part II, Volume 156, Number 12
Registration
SOR/2022-118 May 27, 2022
NUNAVUT PLANNING AND PROJECT ASSESSMENT ACT
Whereas, pursuant to subsection 230(3) of the Nunavut Planning and Project Assessment Act footnote a, the Nunavut Impact Review Board has notified the designated Inuit organization and the federal Minister in writing that an agreement has been entered into under item 7 of Schedule 12-1 to the Nunavut Land Claims Agreement;
Therefore, the Minister of Northern Affairs, pursuant to subsection 230(4) of the Nunavut Planning and Project Assessment Act footnote a, makes the annexed Order Amending Schedule 3 to the Nunavut Planning and Project Assessment Act.
Gatineau, May 26, 2022
Daniel Vandal
Minister of Northern Affairs
Order Amending Schedule 3 to the Nunavut Planning and Project Assessment Act
Amendment
| Item | Classes of Works or Activities |
|---|---|
| 1 | Any research and collection work or activity that requires a permit, licence or authorization issued by the Parks Canada Agency, in accordance with regulations made under subsection 16(1) of the Canada National Marine Conservation Areas Act or under one or more of the following provisions:
|
| 2 | Any research and collection work or activity that requires a permit, licence or authorization issued by the Parks Canada Agency, under one or more of the provisions below, if carried out on a historic place that has been designated under the Historic Sites and Monuments Act, is administered by the Parks Canada Agency and is the subject of an Inuit Impact and Benefit Agreement:
|
| 3 | Any work or activity that requires one or more of the following archeological and palaeontological permits issued by the Government of Nunavut Department of Culture and Heritage:
|
| 4 | Any work or activity that requires one or more of the following authorizations, licences, orders or permits issued by the Government of Nunavut Department of Environment under the Wildlife Act, S.Nu. 2003, c. 26, and the Licences and Tags Regulations, R-012-2015:
|
Coming into Force
2 This Order comes into force on the day on which it is registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
Issues
The Nunavut Planning and Project Assessment Act (the Act) requires that all physical works or activities that involve the use of land, water or other resources, as defined in the Nunavut Land Claims Agreement, be subject to environmental screening by the Nunavut Impact Review Board (the Board). Environmental screening provides an opportunity to identify projects that could result in significant ecosystemic or socio-economic impacts. Screening exemption agreements between the Board and a federal or territorial minister can be put in place for projects or classes of works and activities that have a minimal environmental impact.
Through the Nunavut Land Claims Agreement, three exemption agreements were put in place. It is a requirement of the Act (subsection 230(4)) that a description of any class of works or activities exempted from screening under an agreement is added to Schedule 3 of the Act. This creates certainty for developers regarding the classes of works and activities that are exempt from environmental screening.
Background
The Nunavut Land Claims Agreement was signed on May 25, 1993, by the Government of Canada, the Government of the Northwest Territories and the Tungavik Federation of Nunavut. It required the Inuit and the federal government to establish, through legislation, a joint regime for land and resource management in the Nunavut Settlement Area and the Outer Land Fast Ice Zone. The Act, which received royal assent on June 19, 2013, fulfilled part of this obligation by implementing a land-use planning and environmental assessment regime.
The Act did not come into force immediately upon royal assent, but instead came into force on July 9, 2015, by Order in Council. The delayed coming-into-force was deliberate, allowing completion of implementation work to ensure a smooth transition to the new regime. One implementation task allowed time for the Board to update agreements that would be reflected in Schedule 3 of the Act, which lists: “Classes of Works and Activities Exempt from Screening.”
The Act requires that all physical works or activities that involve the use of land, water or other resources, as defined in the Nunavut Land Claims Agreement, be subject to environmental screening by the Board. The Nunavut Land Claims Agreement allows the Board and a federal or territorial minister who is responsible for authorizing projects, to agree to exempt certain classes of works and activities from the screening process. The Act requires the Minister of Northern Affairs to list these classes of works and activities in Schedule 3 of the Act. While these classes of works and activities may be exempt from the environmental screening process, if there is concern about potential cumulative impacts related to the proposed project, the Act provides the Nunavut Planning Commission (or the Parks Canada Agency in a National Park, a National Marine Conservation Area, a National Historic Site, National Historic Canal or Waterway) with the ability to refer these classes of works and activities to the Board to conduct an environmental screening. Cumulative impacts can result when individual projects that have minimal environmental impact are combined with multiple similar projects and the result of the combined environmental impact of these small projects becomes a greater environmental risk.
If at any time the Board and the federal or territorial minister decide to terminate an agreement, then such works and activities would no longer be exempt from environmental screening. For example, if they determine that these classes of works and activities should be required to undergo an environmental screening because of their potential environmental impact, the agreement could come to an end. In this situation, the Minister of Northern Affairs would be required to amend Schedule 3 of the Act to reflect that change.
Objective
The objectives of the Order Amending Schedule 3 to the Nunavut Planning and Project Assessment Act are
- to provide certainty to developers by including the agreed-upon classes of works and activities that are exempt from screening;
- to provide consistency to the references of these agreed-upon classes of works or activities exempted from screening in the Schedule and clarity in the regulatory regime by ensuring that the current agreements made under the Nunavut Land Claims Agreement can be reflected in the Act; and
- to consolidate the measures related to environmental assessment under one legislative instrument, making the Act and the environmental assessment regime in Nunavut comprehensive and clear for developers.
Description
This Order adds classes of works and activities that are exempt from screening to Schedule 3 of the Act.
These additions stem from three exemption agreements put in place through the Nunavut Land Claims Agreement, including
- an agreement between the Board and the Government of Canada’s Minister of the Environment that was signed on July 7, 2015. It exempts research and collection permits issued by the Parks Canada Agency;
- an agreement between the Board and the Government of Nunavut Department of Culture and Heritage that was signed on February 3, 2016. It exempts Class 1 and 2 archaeological and palaeontological permits issued by the Nunavut Department of Culture and Heritage; and
- an agreement between the Board and the Government of Nunavut Department of Environment that was signed on December 13, 2016. This agreement exempts various authorizations, licences, orders and permits issued by the Nunavut Department of the Environment under the Wildlife Act and Licences and Tags Regulations.
Regulatory development
Consultation
The consultation process for these agreements is laid out in subsections 230(2) and 230(3) of the Act:
- Subsection 230(2): “The recipient of a notice may, within 120 days after receiving the notice, provide the Nunavut Impact Review Board with comments in writing on the proposed agreement.”
- Subsection 230(3): “After taking into account any comments received under subsection (2), the Nunavut Impact Review 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.”
Consultations on the legislative proposal that led to the Act began in 2002. These consultations included Nunavut Tunngavik Incorporated, the Government of Nunavut, the Board, the Nunavut Planning Commission, Industry and various territorial and federal government departments. The topic of project exemptions was discussed during consultations on the legislative proposal. Adding classes of works or activities that are exempted from screening, as agreed to during the Nunavut Land Claims Agreement process, to Schedule 3 of the Act responded to an overall wish by stakeholders to ensure the environmental assessment regime in Nunavut was clear and comprehensive. This approach raised no concern from stakeholders during the consultations on the legislative proposal. Further to these consultations, in 2016, Nunavut Tunngavik Incorporated, the Government of Nunavut and the Board started discussions on how to reflect the three existing agreements into the Schedule and what the Schedule should look like. An agreement on this was reached in October 2019. Throughout that drafting process, the Schedule was shared with the parties, as well as the Parks Canada Agency, for comments.
The Parks Canada Agency had some concerns related to the wording of the amendment they had signed with the Board regarding National Historic Sites. The agreement states that it is only valid on Historic Sites that have a signed Inuit Impact Benefit Agreement. The Parks Canada Agency was concerned that this was not clear and changes were made to address this concern.
Modern treaty obligations and Indigenous engagement and consultation
Regulatory systems in the North are rooted in principles of co-management that flow from land claim agreements. These principles of co-management are woven into resource management legislation that sets out rules for the use, disposition and protection of lands and waters in Nunavut, as administered by the Minister of Northern Affairs.
Consultation obligations related to amending Schedule 3 of the Act are set out in the Nunavut Land Claims Agreement. In accordance with these consultation requirements, drafts of the Schedule were provided to Nunavut Tunngavik Incorporated for review, consideration and input. Consultations included an opportunity to provide written comments on the proposed Schedule. Nunavut Tunngavik Incorporated was supportive of this initiative.
Instrument choice
Subsection 230(4) of the Act indicates that the Minister of Northern Affairs must amend the Schedule by Order. As this requirement is prescribed in legislation, alternative instruments were not contemplated.
Regulatory analysis
Benefits and costs
The Order does not add any additional cost to those (proponents and individuals) who take part in the environmental assessment process. The exemptions listed in this Schedule are already in force under the Nunavut Land Claims Agreement and the Order helps bring clarity to the regulatory process by listing these exemptions in the Act.
Small business lens
The small business lens does not apply, as there are no associated impacts on businesses.
One-for-one rule
The one-for-one rule does not apply, as it does not result in any administrative costs or savings for businesses.
Regulatory cooperation and alignment
The requirement to populate Schedule 3 of the Act is set in subsection 230(4) of the Act. The Act is a requirement of the Nunavut Land Claims Agreement.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.
Gender-based analysis plus
A gender-based analysis plus (GBA+) was completed for this initiative. The negotiation of the agreements is done between the Nunavut Impact Review Board and a federal or territorial Minister. As such, the Department does not play a role in these negotiations in order to ensure the independence of the Board. Considering that these agreements are already in force under the Nunavut Land Claims Agreement, and amending Schedule 3 with exemptions outlined in these agreements does not alter the current regulatory regime, the Department has determined that no new impacts are expected.
Implementation, compliance and enforcement, and service standards
The Order Amending Schedule 3 to the Nunavut Planning and Project Assessment Act came into force on the day on which it was registered. There are no compliance and enforcement requirements associated with adding, amending or deleting — from Schedule 3 — descriptions of any class of works or activities exempted from environmental screening under an agreement as set out in the Act.
The Act created a legislative obligation to reflect agreements exempting certain classes of works or activities from the screening process in Schedule 3 to ensure greater clarity in the environmental assessment regime in Nunavut. Mechanisms to ensure enforcement and compliance of projects with the environmental assessment regime in Nunavut are a shared responsibility between various regulators (federal and territorial Ministers, departments and/or agencies) who must, to the extent of their jurisdiction and authority to do so, implement the terms and conditions that are set out in a specific project certificate. The regulators are responsible for enforcing the requirements of any licence, permit or other authorization that they issue under to the extent of their authority.
The Act provides that the Nunavut Planning Commission (or the Parks Canada Agency in a National Park, a National Marine Conservation Area, a National Historic Site, National Historic Canal or Waterway) can refer any classes of works and activities exempted from an environmental screening process to the Board to undergo an environmental screening if it has concerns with cumulative effects.
Contact
Troy MacKay
Resource Policy and Programs Directorate
Northern Affairs Organization
Crown-Indigenous Relations and Northern Affairs Canada
15 Eddy Street
Gatineau, Quebec
K1A 0H4
Telephone: 819‑639‑7464
Email: troy.mackay@rcaanc-cirnac.gc.ca