Lands & Regulation - Nunavut Planning - Industry Letter

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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. Page 2 of 9
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: Page 3 of 9
Page 1: November 15, 2010 BY E-MAIL AND BY
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Lands & Regulation - Nunavut Planning - Industry Letter

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