Lands & Regulation - Nunavut Planning - Industry Letter

November 15, 2010
BY E-MAIL AND BY FAX TO: 819-953-4941
The Hon. John Duncan
Minister of Indian Affairs and Northern Development, Federal Interlocutor
for Métis and Non-Status Indians, and Minister Responsible for the
Canadian Northern Economic Development Agency
Ottawa, Ontario
K1A 0A6
Dear Minister Duncan:
Re:
Bill C-25: the Proposed Nunavut Planning and Project Assessment Act
This letter is submitted on behalf of the Northwest Territories and Nunavut Chamber of Mines
(NWTNCM), the Mining Association of Canada (MAC) and the Prospectors and Developers Association
of Canada (PDAC) in relation to Bill C-25, the proposed Nunavut Planning and Project Assessment Act
that was tabled in the House of Commons for First Reading on May 12, 2010. In preparation for further
debate and review of C-25, we are writing to urge the federal government to propose a number of
amendments to address the principal issues and concerns that our members have identified with regard to
the proposed legislation.
Mineral Sector Consultation in Anticipation of Bill C-25
The mineral sector encourages governments to establish regulatory regimes that promote sustainable
development, while at the same time enabling the private sector to undertake responsible mineral resource
initiatives that have the potential to generate economic and social benefits that will improve the lives of
local residents, particularly Aboriginal peoples, and those of other Canadians. To give effect to these
principles in this instance, the NWTNCM, PDAC and MAC have actively participated in the extensive
consultation process that Indian and Northern Affairs Canada has conducted in order to solicit the views
of the mineral sector in relation to the proposed enactment.
The department initiated this dialogue in April 2009 when it first developed draft legislation in the form
of the Nunavut Land Use Planning and Impact Assessment Act. The discussions that followed included
four workshops that INAC officials convened with industry representatives. The most recent of these was
the session that took place in Vancouver on June 4 of this year after the bill had been tabled in the House.
During the preceding months, the NWTNCM, PDAC and MAC submitted three detailed reviews of the
successive versions of the draft legislation that the department had made available, on a confidential
basis, for our joint review.
Throughout this process, we have expressed our appreciation for the opportunity to contribute to the
development of this critically important legislation. Moreover, we commend the federal government for
fulfilling this long-standing obligation under the 1993 Nunavut Land Claims agreement. We understand
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that, once proclaimed into force, Bill C-25 will complete the statutory regime for land use planning and
environmental and socio-economic impact assessment that the land claims agreement requires.
With these overarching objectives in mind, our associations support the passage of the legislation. We
maintain that, when appropriately implemented, a balanced and efficient land use and impact assessment
regime will enhance the capacity of Nunavut to compete for the high-risk exploration and development
investments that are critical in order to ensure that Nunavummiut and other Canadians derive full benefit
from the territory’s considerable mineral endowment.
Issues of Continuing Concern
Against this backdrop, it is gratifying to note the enhancements and refinements that the legislative
drafting team has progressively implemented as the draft bill has evolved. However, certain provisions
continue to trouble the mineral exploration sector, particularly those that appear to be inconsistent with
the federal government’s on-going commitment to ensuring that regulatory processes in the north are
clear, efficient, timely and balanced.
A number of the provisions that continue to raise concerns are discussed in the appendix to this letter,
which also outlines suggested amendments. We submit that four key elements of the proposed legislation
should be given particular consideration and, where indicated, should be amended, for the reasons
outlined below:
(a)
Definition of “Project”
The definition of the term “project” in subsection 2(1) of Bill C-25 is extremely broad. As
presently written, it could be interpreted to encompass low-level, innocuous activities that are
unlikely to have any adverse environmental or socio-economic impacts. Nonetheless, if these
kinds of activities could still qualify as a “project” under the proposed definition, they must be
submitted to the Nunavut Planning Commission for review. Given that the draft bill provides
significant penalties for failure to do so, proponents may feel compelled to over-report. If that
becomes the case, they will incur unnecessary effort and expense, while diverting the resources of
the commission from more important work.
We note that paragraph 228(2)(a) of the draft bill authorizes the making of regulations in order to
define “...excluded works or activities” for the purposes of the definition of “project”. In our
view, regulations of this kind could potentially mitigate some of the risks posed by the current
definition.
We therefore recommend that the legislation not be proclaimed into force until the regulations
envisaged by paragraph 228(2)(a) are ready for promulgation. For similar reasons, we
recommend that Schedule 3, entitled “Classes of Works and Activities Exempt from Screening”,
be likewise completed before Bill C-25 is proclaimed into force. Consistent with our approach to
the draft legislation to date, our associations would be pleased to contribute to the development
and review of the draft regulations and the proposed schedule.
(b)
Creation of Offences Under Land Use Plans
When taken together, subsection 48(4), paragraph 74(f) and subsection 219(1) of the draft bill
provide that a land use plan can incorporate specific requirements that, if contravened, would
constitute an offence. The maximum penalties that may be imposed for non-compliance are
considerable, namely a fine of not more than $100,000, imprisonment for a period of up to one
year, or both.
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We are not aware of any other jurisdiction where statutory provisions authorize land use plans to
establish quasi-criminal offences. Moreover, the relevant provisions of the Nunavut Land Claims
Agreement, including those contained in Article 11, do not contemplate measures of this kind.
In our view, other laws of general application that prevail in Nunavut already provide sufficient
deterrents, by way of significant fines and other penalties, to deter environmental misconduct or
non-compliance. We respectfully submit that the need for Bill C-25 to add an unorthodox
enforcement mechanism to the existing regulatory regimes has not been justified. We therefore
recommend that subsection 48(4) of Bill C-25 be deleted, along with the corresponding reference
to that provision in section 74.
(c)
Proposed Requirements for Minor Variances
As envisaged by section 11.5.10 of the Nunavut Land Claims Agreement, Bill C-25 provides for
the granting of minor variances, where appropriate, from the requirements of land use plans.
However, section 81 of the proposed enactment would establish an exhaustive regime governing
such variances. The resulting process would include a public announcement, the right of any
person to file a submission opposing the variance, an obligation on the Nunavut Planning
Commission to consider such submissions, and, where warranted, a public review of the minor
variance application.
Moreover, once invoked, this process would exempt the commission from complying with the 45-
day time limit for determining whether the development proposal conforms to the applicable land
use plan.
The complex consultation process contemplated by the draft legislation for minor variances,
particularly the potential requirement for a public review, seems burdensome and excessive. This
is particularly the case when one considers that the proposed regime is meant to apply exclusively
to minor variances. An elaborate scheme of this nature may well be unnecessary if, as
contemplated by subsection 48(3) of the draft bill, the applicable land use plan clearly spells out
the conditions that must be satisfied before a minor variance can be granted.
We therefore suggest that the Commission, in and of its own accord, should discharge the
responsibility of determining whether or not a minor variance will be granted or denied. An
appropriate level of public awareness of such variances could still be ensured by filing written
reasons prepared pursuant to paragraph 150(b) in the commission’s public registry.
Consequently, we recommend that section 81 of Bill C-25 should be amended by deleting
subsections (3), (4) and (5).
(d)
Timelines and Timeframes
We acknowledge that, by incorporating a significant number of timelines and timeframes as part
of the overall environmental and socio-economic impact assessment process, Bill C-25 is
intended to establish an assessment and review regime that has the potential to be more rigorous
and timely than the process envisaged by earlier versions of the draft legislation.
However, a number of the proposed timeframes and timelines continue to be of concern to the
mineral exploration sector.
First, there are those that could potentially extend for as much as 180 days or six months, and
therefore seem unnecessarily long. Examples include the following:
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section 95 (modification or abandonment of a project) – 120 days plus a potential
extension for an additional 60 days;
section 105 (ministerial decision following a determination by the Nunavut Impact
Review Board (NIRB) that a project should proceed) – 120 days plus a potential
extension for an additional 60 days; and
section 106 (ministerial decision following a determination by the NIRB that a project
should not proceed) – 120 days plus a potential extension for an additional 60 days).
Second, of even greater concern are the elements of the process that could last for as much as 360
days, or essentially an entire year, instances of which are as follows:
section 125 (ministerial decision following a determination by a federal environmental
assessment panel that project should proceed) – 180 days plus a potential extension for an
additional 180 days;
section 126 (ministerial decision following a determination by a federal environmental
assessment panel that project should not proceed) – 180 days plus a potential extension
for an additional 180 days;
Conversely, there are elements of the assessment and review process that, in our view, should
have been the subject of timelines or timeframes, but none have been provided for. Examples
include:
section 99 – determination of the scope of a project by the NIRB;
section 101 – development, approval and issuance of the guidelines for the preparation of
an environmental and socio-economic impact statement; and
sections 102 and 103 – conduct and completion of the review of the proposed project by
the NIRB.
We further note that subsection 92(4) authorizes the Minister to extend the 45-day period for
submission of the report that the NIRB is required to submit pursuant to subsection 92(1).
However, unlike other provisions that authorize an extension, subsection 92(4) does not
specifically limit the number of days for which the extension can be made.
Finally, we note that the words “as soon as practicable” are used in section 110, subsection
112(9), subsection 120(8) and section 131. However, the draft legislation provides no further
guidance as to how quickly the actions described in those sections must be completed.
In our analysis, under a “worst case scenario” the timelines and timeframes that currently appear
in the proposed legislation could potentially require up to 800 days in order to complete the
overall impact assessment process. However, as noted above, no timelines or timeframes have
been provided for a number of important steps in the overall process. Taking all of these factors
into account, and having regard to past environmental assessments, experienced industry
observers have suggested that, under Bill C-25, three to five years could potentially be needed to
complete the assessment of a major mining project in Nunavut. While a time period of this
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magnitude will hopefully never be required, we submit that it demonstrates the need for further
adjustment of the timelines and timeframes that the draft enactment currently contemplates.
The mineral exploration and mining sector fully respects the need for the key institutions of
public government, notably the Nunavut Planning Commission and the Nunavut Impact Review
Board, to have sufficient time to discharge their highly important responsibilities. At the same
time, however, the competitive position of Nunavut will be impaired, particularly from a mineral
exploration perspective, if prospective investors perceive that the regulatory process that Bill C-
25 ultimately implements is inefficient, onerous or unduly prolonged. We therefore recommend
that the applicable provisions of the draft legislation should be carefully reconsidered in order to
adjust the existing timelines and timeframes and incorporate new ones where required.
In conclusion, we respectfully submit that the statutory environmental and socio-economic impact
assessment process in Nunavut must be designed to respond to proposals for mineral exploration, mine
development and mining operations in an efficient, transparent and timely manner. At the same time,
however, the process must honour the principles, goals and objectives set out in the Nunavut Land Claims
Agreement, while giving full effect to the federal government’s commitment to optimize regulatory
regimes in Canada’s north.
We appreciate the opportunity to bring these views to your attention, and would be pleased to provide any
additional information. Representatives of our three associations remain available to meet with your
departmental officials to discuss the issues outlined above or those summarized in the attached document.
Yours sincerely,
John Kearney Gordon Peeling Tony Andrews
President President and CEO Executive Director
NWTNCM MAC PDAC
c.c.
The Hon. Leona Aglukkak, Minister of Health and Regional Minister for
Northwest Territories, Nunavut and Yukon
The Hon. Dennis G. Patterson, Senator for Nunavut
Shelly Glover, MP, Parliamentary Secretary to the Minister of Indian Affairs and Northern
Development
The Hon. Peter Taptuna, Minister of Economic Development and Transportation,
Government of Nunavut
Patrick O’Neill, Director, Mineral Resources Directorate, Indian and Northern Affairs Canada
Stephen Traynor, Director, Resource Policy and Programs Directorate,
Indian and Northern Affairs Canada
Jose Kusugak, Acting-President, Nunavut Tunngavik Incorporated
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APPENDIX TO THE NWTNCM, MAC and PDAC LETTER
TO THE HON. JOHN DUNCAN,
MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT,
DATED NOVEMBER 15, 2010
Additional Issues of Concern and Suggested Amendments in Relation to
Bill C-25, the Proposed Nunavut Planning and Project Assessment Act
1. Subsection 38(2) – NPC and NIRB By-laws and Rules
Bill C-25 defines an “interested corporation or organization” as “...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.”
The defined term subsequently appears in two sections of the proposed enactment:
(a)
(b)
in section 43, where the Nunavut Planning Commission is required to “...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”; and
in subsection 50(2), which requires the Commission to “...solicit written and oral
comments on the draft land use plan from appropriate departments or agencies,
designated Inuit organizations, affected municipalities, interested corporations
and organizations, Inuit and other residents of the designated area and the
general public”.
However, the defined term is not used in the same way in subsection 38(2), which
pertains to the development of by-laws and rules by the Nunavut Planning Commission
and the Nunavut Impact Review Board.
It is therefore recommended that subsection 38(2) utilize the defined term “interested
corporation or organization” and be amended to read as follows:
(2) The notice referred to in paragraph (1)(b) must include an invitation to
interested persons, including interested corporations and 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.
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2. Section 104 – Conditions Recommended by NIRB Following Project Review
Subsection 104(1) establishes that the Nunavut Impact Review Board must submit a
written report to the responsible Minister within 45 days after completing its review of a
project. If the board determines that a project should proceed, it must include any terms
and conditions that it recommends should apply in respect of the project.
The previous version of the proposed enactment qualified the scope of such terms and
conditions. It specified that they must be consistent with “...the objectives set out in
section 23” of the proposed legislation. Section 23 is similar to the corresponding
provisions of the Nunavut Land Claims Agreement which establishes the following as
NIRB’s primary objectives:
(a)
(b)
to protect and promote the existing and future well-being of the residents and
communities of the designated area; and
to protect the ecosystemic integrity of the designated area.
If the legislation does not incorporate guidance of this kind, the discretion of NIRB could
be interpreted to be very broad. This could potentially induce the board to recommend
terms and conditions that are not strictly in keeping with its statutory mandate or in full
accordance with the Nunavut Land Claims Agreement.
Consequently, it is recommended that paragraph (c) of section 104(1) should be amended
to restore the cross-reference to section 23 of the proposed enactment, and therefore read
as follows:
(c)
if it determines that a project should proceed, any terms and conditions that,
consistent with the objectives set out in section 23, the Board
recommends should apply in respect of the project.
3. Section 154 – Exempting Exploration or Development Activities from Review
Subsection 154(1) of Bill C-25 authorizes exploration and development activities “...that
relate directly to a project” that is already under review to proceed without a separate
review, provided that they fall within certain specified exemptions. The legislation
further provides that these activities should be allowed to go ahead where “...in the
Board`s opinion, [they may] proceed without such a review”. However, the draft
legislation gives no specific indication as to when NIRB should exercise this discretion,
or how the board would go about doing so.
In contrast, subsection 86(2) of Bill C-25 recognizes the benefit to be gained by having
NIRB consult with the proponent whenever the board contemplates making an inclusion
in, or an exclusion from, the scope of a proposed project when performing the “scoping”
function.
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It is therefore recommended that subsection 154(1) and, in particular paragraph (b) of that
subsection, adopt an analogous approach, and be amended to read as follows:
154. (1) ...the proponent may undertake or carry out exploration or
development activities that relate directly to a project that is subject to a
review under this Part if
. . .
(b) the activities may, in the Board’s opinion, after consulting with
the proponent, proceed without such a review.
The proposed amendment may be of particular importance until Schedule 3 of Bill C-
215 has been enacted to define works and undertakings that are exempt from screening,
and until regulations made pursuant to paragraph 228(2)(b) have defined any “class of
non-exempt activities” as contemplated by paragraph 154(1)(a) that are subject to the
proposed enactment.
4. Section 208 – Exemption of a Suspended Project from Assessment
Section 208 provides that certain projects are exempt from an assessment under Part 3
of the proposed enactment. Paragraph 208(1)(b) states that exempt projects include
“...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 [Part 3] and lawfully carried out”.
By incorporating the words “...and lawfully carried out...”, section 208 would
potentially have the effect of disqualifying a project from the exemption that would
otherwise be available because of an infraction of some other law or regulation, no
matter how minor or unrelated to adverse environmental or socio-economic impacts the
non-compliance may have been.
Paragraph 208(1)(b) should therefore be amended to ensure that the exemption from
further review will only be denied where the project has not been carried out
substantially in accordance with the proposed legislation.
It is therefore recommended that paragraph 208(1)(b) be revised to read as follows:
(b)
the rebuilding of a work that has been closed for less than five years if it
relates to a project that was approved under [Part 3] and has been carried
out substantially in accordance with this Act.
5. Section 235 – Exemption of a Project Being Assessed under the NLCA
Paragraph 235(1)(a) exempts, from the application of Bill C-25, “...any project that is
being assessed under the [Nunavut Land Claims] Agreement or is being, or has been,
lawfully carried out on the day this section comes into force.”
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For reasons analogous to those outlined above in relation to section 208, a project would
be denied the benefit of this exemption on account of any infraction of a law or
regulation, no matter how minor or unrelated to adverse environmental or socioeconomic
impacts.
It is therefore recommended that paragraph 235(1)(a) be revised to read as follows:
(a)
a project that is being assessed under the Agreement or is being, or has
been, carried out in accordance with any project certificate or
amended project certificate issued pursuant to the Agreement on the
day on which this section comes into force.”
6. Sections 210 and 214 – Authority to Enter and Make Orders
Section 210 of Bill C-25 grants very broad powers to a person “...who is designated to
verify compliance with [the legislation] or orders made under section 214...” to enter
any place where a project is being carried out. The powers granted to that person
include the authority to direct “...any person to put any machinery, vehicle or equipment
in the place into operation or to cease operating it.”
The proposed enactment does not impose any limits or conditions on the designated
person when he or she exercises this power, or the related power to “...prohibit or limit
access to all or part of the place” where a project is being carried out.
Section 214 authorizes a “designated person” to issue orders to a person or entity to
cease doing something that is in violation of the draft legislation, or to take any measure
that the designated person considers necessary to comply with the legislation or mitigate
the effects of a contravention. Any such order must be in writing, and must include the
reasons for the order, as well as the time and manner in which it is to be carried out.
The powers contemplated by these two sections are far-reaching, and appear to be much
more extensive, for example, than those accorded to an inspector appointed under the
Nunavut Waters and Nunavut Surface Rights Tribunal Act. Moreover, the relationship
between the powers listed under section 210 and those specified in section 214 is not
entirely clear.
It is therefore recommended that the entry, inspection and enforcement powers to that
the “designated person” is allowed to exercise be consolidated in a single
comprehensive section of the proposed enactment. More importantly, it is also
recommended that this provision be amended to specify that these powers can only be
exercised: (i) in circumstances where they are reasonably required in order to ensure
compliance with the legislation or prevent a contravention; and (ii) in a manner that will
not compromise the health or safety of any person or cause damage to the environment.
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