Lands & Regulation - Nunavut Planning - Industry Letter

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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