Bill C-6: An Act to provide for an integrated system of land and water management in the MacKenzie Valley, to establish certain boards for that purpose and to make consequential amendments to other Acts (LS302E)

BILL C-6: AN ACT TO PROVIDE FOR AN INTEGRATED
SYSTEM OF LAND AND WATER MANAGEMENT IN THE
MACKENZIE VALLEY, TO ESTABLISH CERTAIN BOARDS
FOR THAT PURPOSE AND TO MAKE CONSEQUENTIAL
AMENDMENTS TO OTHER ACTS

Prepared by:
Mary C. Hurley, Law and Government Division
Jill Wherrett, Political and Social Affairs Division
30 October 1997
Revised 7 October 1998

BILL C-6: AN ACT TO PROVIDE FOR AN INTEGRATED SYSTEM OF
LAND AND WATER MANAGEMENT IN THE MACKENZIE VALLEY,
TO ESTABLISH CERTAIN BOARDS FOR THAT PURPOSE AND
TO MAKE CONSEQUENTIAL AMENDMENTS TO OTHER ACTS

Bill C-6,* the Mackenzie Valley Resource Management Act, was introduced and given first reading in the House of Commons on 26 September 1997. Following second reading debate on 28 and 29 October, the bill was referred to the Standing Committee on Aboriginal Affairs and Northern Development (the House Committee). From 18 November to 4 December 1997, the House Committee heard testimony from and considered the written submissions of witnesses representing various First Nations and Aboriginal groups of the Mackenzie Valley, industry and business interests and government. Bill C-6 was reported back to the House of Commons on 11 December with a number of amendments. On 17 March 1998, the bill was adopted by the House of Commons without further amendments by a vote of 160-89. Bill C-6 was introduced in the Senate on 18 March 1998, received second reading on 24 March and was referred to the Senate Standing Committee on Aboriginal Peoples (the Senate Committee). Following Senate Committee hearings held from 28 April through 9 June 1998, Bill C-6 was reported back to the Senate without further amendments on 9 June. On 17 June, the Minister of Indian Affairs and Northern Development appeared before the Senate Committee to address concerns that had been raised before it about Bill C-6. The bill was adopted by the Senate on 18 June 1998.

The bill results from the settlement of two comprehensive land claims(1) involving northern portions of the Mackenzie Valley, and is intended to implement certain provisions of the Gwich’in and Sahtu Dene and Métis Comprehensive Land Claim Agreements by setting up an integrated system for land and water management and environmental assessment in the Mackenzie Valley.

In 1988, after many years of negotiations, the Dene and Métis of the Mackenzie Valley signed a joint comprehensive land claim Agreement-in-Principle with the federal government. The Agreement fell apart, however, over some key political issues. In July 1990, the Dene/Métis leadership passed a resolution calling for renegotiation of part of the Agreement and possible court action to force recognition of their Aboriginal and treaty rights. The Gwich’in of the Delta region and the Dene and Métis of the Sahtu region did not agree with this decision and withdrew from the joint claim. The breakdown of this Agreement reflected differences that had been present throughout the negotiating process. Many Dene, particularly those from the southern regions of the Mackenzie Valley, were extremely opposed to the extinguishment of Aboriginal rights to land that is required under the federal land claims policy; they wanted the Agreement to recognize their treaties and inherent Aboriginal rights, including the right of self-government. Other regions were more anxious to reach a settlement, because of development pressures.

After the breakdown of the Dene/Métis Agreement, the Minister of Indian Affairs announced that the federal government would negotiate regional claims with Aboriginal groups from the five regions of the Mackenzie Valley, based on the provisions of the 1988 Dene/Métis Agreement-in-Principle. In 1992, the Gwich’in of the Delta region became the first group to settle their claim. Legislation implementing the Gwich’in Comprehensive Land Claim Agreement (the Gwich’in Agreement) became law on 22 December 1992.(2) Among other things, the Gwich’in Agreement gives the Gwich’in fee simple ownership of 22,422 square kilometres of land, including 6,158 square kilometres of subsurface ownership; $75 million (in 1990 dollars) to be paid over 15 years; wildlife harvesting rights; and guaranteed participation in bodies to be established for the management of wildlife and the regulation of land, water and the environment. Provisions of the Gwich’in Agreement further specify that an integrated system of land and water management should apply to the Mackenzie Valley and describe, in general terms, the boards that are to be established for those purposes, as well as for environmental assessment. The Gwich’in Agreement required that legislation to establish these boards be passed within two years of the date of the settlement legislation. It also provided for an Interim Land Use Planning Board until the establishment of a permanent board through federal legislation.

The Dene and Métis of the Sahtu region reached an agreement in 1993 (the Sahtu Agreement), and legislation to implement that agreement became law on 23 June 1994.(3) The Sahtu Dene and Métis received title to 41,437 square kilometres of land, 1,813 kilometres of which includes subsurface rights. Like the Gwich’in Agreement, the Sahtu Agreement provides for $75 million (in 1990 dollars) over a 15-year period. Similar provisions exist in both the Gwich’in and Sahtu Agreements (the Agreements) under most headings, including guaranteed participation in institutions of public government for renewable resource management, land use planning and water use within their settlement area, and for environmental impact assessment and review within the Mackenzie Valley. The Sahtu Agreement does not provide for an interim board for land use planning.

It should be noted that both the Agreements and their settlement legislation confirm that the Agreements are land claim agreements within the meaning of section 35 of the Constitution Act, 1982; that is, the rights guaranteed under the Agreements are constitutionally entrenched treaty rights.

As obliged under the Agreements, representatives of the Gwich’in, the Sahtu Dene and Métis, the territorial government and the Department of Indian Affairs and Northern Development were given the task of developing legislation to implement the terms of the Agreements. In keeping with the above, Bill C-6 would establish a Land Use Planning Board in each of the Gwich’in and Sahtu settlement areas; a Mackenzie Valley Land and Water Board, with a permanent regional panel in each of the Gwich’in and Sahtu settlement areas; and an Environmental Impact Review Board for the entire Mackenzie Valley. The bill would establish the mandate and responsibilities of each board. The Land Use Planning Boards would have the power to develop land use plans and confirm that lands are used in conformity with those plans. The Land and Water Board and its panels would have authority to regulate the use of land, water and waste deposit through the provision of land use permits, water use licences or other authorizations. The Environmental Impact Review Board would review proposed developments on land or water, including proposals related to First Nation settlement lands and Indian reserves.(4)

In August 1997, the Minister of Indian Affairs and Northern Development announced the creation of the Northwest Territories Interim Resource Management Program. The program is intended to allow Aboriginal communities in unsettled land claim areas (i.e., Deh Cho, North Slave and South Slave regions) to participate in resource management decisions affecting their traditional lands. Funding of $1.5 million has been reallocated to establish the program.

For reference purposes, maps of the Mackenzie Valley illustrating areas covered by the Gwich’in and Sahtu Agreements and areas not covered by any land claim agreements are appended.

Bill C-6 consists of a preamble, 170 clauses and a schedule. Following introductory provisions, the bill’s remaining substantive components are divided into seven Parts: General provisions respecting Boards; Land Use Planning; Land and Water Regulation; Mackenzie Valley Land and Water Board; Mackenzie Valley Environmental Impact Review Board; Environmental Monitoring and Audit; and Transitional Provisions. A detailed table of provisions can be found at the beginning of the bill.

The following review is intended to provide a general overview of the various institutions established by Bill C-6, and does not discuss every clause or amendment made to the bill by the Committee.(5)

The substantive clauses of Bill C-6 are preceded by a three-paragraph Preamble which establishes a context and rationale for the proposed legislation. The Preamble would enter the annual statute book as an integral part of the legislation. Statutory preambles are not commonplace, but were included in legislation on several occasions during the 35^th Parliament, and appear to be enjoying a resurgence as a way of underscoring parliamentary intent in enacting legislation. They may on occasion by relied upon by courts seeking to resolve ambiguity in the statute they precede.

As first introduced, the Preamble to Bill C-6 contained a fourth paragraph stating the government’s intention "to review, in consultation with first nations of the Mackenzie Valley, pertinent provisions" of the proposed Act "in relation to self-government negotiations with those first nations." It would appear that this somewhat ambiguous paragraph was meant to offer some security to Mackenzie Valley First Nations not covered by the Agreements that the legislation would not prejudice their actual or eventual self-government negotiations.(6) During clause by clause consideration, the House Committee deleted the paragraph from the Preamble, and added a reworded provision reflecting the same intent to the bill’s substantive, i.e., enforceable, provisions.(7)

Of the definitions for terms used in the bill, several should be noted. "First nation" was originally defined as the Gwich’in First Nation, the Sahtu First Nation or a body representing the Dene or Métis of the North Slave, South Slave or Deh Cho regions of the Mackenzie Valley, for whom land claim agreements have not been concluded. Thus, the term, when used without reference to a specific group, would include any of the First Nations of the Mackenzie Valley. Spokespersons of Mackenzie Valley First Nations not covered by the Agreements found this definition flawed, either because of its broad inclusion of all the Dene and Métis in the Mackenzie Valley, or because it did not specifically identify their representative organizations. Purportedly in response to some of these criticisms, the House Committee replaced the phrase "a body representing the Dene or Metis" with "bodies representing other Dene or Metis," leaving open the question of whether this modified definition addresses the underlying bases for both criticisms. Before the Senate Committee, a number of Aboriginal groups objected to the modified definition on the same grounds that they had raised in relation to the previous definition.

"Mackenzie Valley" is defined as the area bounded by the Yukon on the west, the Inuvialuit Settlement Region on the north, the Nunavut Settlement Area on the east and the 60th parallel of latitude on the south. Before the House and Senate Committees, Mackenzie Valley First Nations not party to land claim agreements advocated narrowing this definition to those areas covered by the Agreements. "Settlement area" refers to a portion of the Mackenzie Valley to which a "land claim agreement" applies. This is distinguished from "settlement lands," which are those lands outside "local government" boundaries granted to the Gwich’in and Sahtu under the Agreements (clause 2).

Bill C-6 sets out obligations related to any "consultation" provided for in the Act that are comparable to those provided in the Agreements (clause 3).

The bill would authorize the Minister of Indian Affairs and Northern Development to delegate any of his or her functions under the Act to the minister of the territorial government responsible for renewable resources, including, it would appear, the power to appoint all members of the boards created by the Act. To the degree this delegation was exercised, it could represent a significant transfer of authority from the federal to the territorial government. It should be noted that the clause specifies that powers might be delegated to a particular territorial Minister. As a result, powers or duties of the federal Minister referred to in the following pages could in practice be exercised by his or her delegate, the "minister of the territorial government responsible for renewable resources" (clause 4).(8) This would be consistent with the federal government’s policy of devolving powers to the territories.

In the event of inconsistency, the Indian Act, the Gwich’in or Sahtu Land Claim Agreement or the legislation giving effect to either Agreement would prevail over this Act. This is a significant provision in that First Nations have on occasion expressed concern that legislation implementing land claim agreements may not fully reflect the spirit or letter of those agreements. It would fall to the courts to determine whether there was any inconsistency between the listed instruments. The bill also contains a non-derogation provision regarding the protection of Aboriginal rights, now frequently seen in legislation relating to Aboriginal peoples (clause 5). Such clauses can be controversial, as many First Nations consider that they do not sufficiently protect Aboriginal and treaty rights, as they understand them, but rather protect these rights as they are interpreted by the federal government.

In accordance with provisions of the Agreements, the initial version of Bill C-6 would have required the federal Minister to consult only the Gwich’in and Sahtu First Nations with respect to amendments to the proposed Act (clause 8). In recognition that other First Nations of the Mackenzie Valley would be affected by the Act and possibly by amendments to it, the House Committee modified this provision to extend the Minister’s obligation to consult to "the first nations" of the Mackenzie Valley, as defined. Clause 8 was further amended by the addition of a new sub-clause which would require the Minister to "review" "pertinent provisions" of the proposed Act in consultation with a first nation in the course of self-government negotiations with that first nation. This addition arguably represents a strengthened version of the deleted preambular paragraph mentioned above. The scope of the obligatory "review" and the determination of "pertinence" remain undefined.

Part 1 of Bill C-6 sets out generic provisions that would apply to each of the boards established by the Act. The actual composition and other details relevant to specific boards are contained in Parts 2 to 5.

In order to address a perceived gap in Part I general provisions, the House Committee added a "purpose" clause under which the creation of boards by the proposed Act would be "to enable residents of the Mackenzie Valley to participate in the management of its resources" for their benefit and that of other Canadians (clause 9.1).

Every board created by the bill would have the legal capacity of a natural person, meaning that it could sue and be sued, enter into contractual relationships, and so forth (clause 10). Appointments of board members to three-year renewable terms (clause 14) would be by the federal Minister, with appointees nominated by First Nations or the territorial Minister, or named following consultation with First Nations, as provided in Parts 2 to 5 (clause 11). Every board chairperson would be appointed by the federal Minister from persons nominated by a majority of a given board’s members or, should such a majority not name "a person acceptable to the federal Minister within a reasonable time," would be any person appointed by the Minister (clause 12). The bill does not define criteria for acceptability or reasonableness.

Bill C-6 would allow for two additional "special" board members, in circumstances where the Agreements provide a right of representation to Aboriginal persons who are party to a land claim agreement in an area of the Northwest Territories adjacent to the Mackenzie Valley that may be affected by a board decision (clause 15). Members of First Nations inhabiting adjacent regions of the Mackenzie Valley but who are not party to a land claim agreement would not be covered by this provision, whether or not those regions might be affected by a given board decision.

Board members would be prohibited from participating in board functions placing them in a material conflict of interest; however, they would not be considered to be so placed merely because status or entitlement was conferred on them under either of the Agreements or any other land claim agreement (clause 16).

Board decisions would be defined as those taken by a majority of members present at a meeting (clause 21). This provision, read together with quorum provisions in Parts 2 and 3 (see clauses 36(3) and 38(3)); clauses 54(3) and 56(3)), would mean that two members of either land use planning boards or land and water boards established by those parts might make decisions for their respective boards. Similarly, decisions of the eleven-member Environmental Impact Review Board established in Part 5 might be made by three members (see clause 112(4)).

Under Bill C-6, any board decision or order might be made an order of the Supreme Court of the Northwest Territories, and would be enforceable as such (clause 23). Furthermore, the land and water and environmental boards established by Parts 3 to 5 would be invested with the powers of a superior court for certain purposes having to do with evidence-gathering (clause 25).

Boards would be given discretionary authority to conduct hearings other than those explicitly provided for in the bill if they were considered desirable (clause 24).

Boards would be required to submit an operating budget for the following fiscal year to the federal Minister, who might establish arrangements setting out funding details pursuant to a budget she or he had approved. The accounts and financial statements of a board would, in addition, be subject to audit by the Auditor General of Canada (clause 26).

Bill C-6, in its initial form, would have authorized – but not required - boards to make by-laws "respecting the conduct and management of [their] internal administrative affairs" (clause 29). Under a government amendment narrowly adopted by the House Committee, this by-law-making authority would explicitly include "by-laws respecting the holding of meetings in private and the maintenance at its office of minutes of its meetings." Some House Committee members expressed doubt as to whether this modification, as drafted, would adequately address their concerns that the bill would not require board meetings to be held in public, or public access to board minutes.

Normally the Federal Court of Canada exercises exclusive judicial review authority over decisions or actions of federal entities such as the boards proposed by Bill C-6. The bill would provide that judicial review applications challenging a board might also be made to the Supreme Court of the Northwest Territories by the federal Attorney General or persons "directly affected" by "the matter in respect of which relief is sought."

Part 2 sets out the composition of the Gwich'in and Sahtu Land Use Planning Boards (planning boards) and describes land use planning procedures for the Gwich'in and Sahtu settlement areas.

The land use planning provisions of Bill C-6 would not apply to lands within a settlement area that: (1) comprised a national park to which the National Parks Act applied; (2) had been acquired pursuant to the Historical Sites and Monuments Act;(9) or (3) were situated within the boundaries of a "local government," as defined at clause 2 (clause 34).

Certain principles, which would include special attention to the rights of the Gwich'in and Sahtu First Nations under their land claim agreements, would guide land use planning for the settlement area (clause 35). Similar principles are set out in the Agreements.

The Gwich’in Land Use Planning Board would consist of five members, including the chairperson. Two members would be appointed on the nomination of the Gwich’in First Nation and one member on the nomination of the territorial Minister (clause 36(2)). By necessary implication, the fourth member would be a federal nominee pursuant to the terms of Part 1, while the chairperson would also be appointed under general Part 1 provisions. A quorum would consist of three members (clause 36(3)).

Identical provisions would apply with respect to the Sahtu Land Use Planning Board (clauses 38 and 39).

Each planning board would prepare and adopt a land use plan to provide for the conservation, development and use of land, waters and other resources in its settlement area. In developing its plan, a planning board would be required to take into consideration the land use plan proposed by the First Nation for its settlement lands and might incorporate that plan into the land use plan for the settlement area (clause 41).

A planning board would be required to publish a notice in the affected settlement area "and in adjoining settlement areas of the Mackenzie Valley" inviting interested persons to examine a draft of the land use plan; it could, but would not be required to, hold public hearings in relation to it following identical notification requirements (clause 42). The purportedly expanded notice requirements arising from the House Committee’s amendment would, technically speaking, require public notification only in settlement areas as defined in the bill, i.e., adjoining areas covered by land claim agreements.(10) Bill C-6 does not prescribe the means or time frame for publication of a public notice or a process by which the public could comment.

After the adoption of a land use plan, the planning board would submit the plan to the First Nation of the settlement area, the federal Minister and the territorial Minister, thereby setting an approval process in action. Once the First Nation had approved the plan, it would indicate its approval in writing to the territorial and federal Ministers, after which the territorial Minister might approve the plan and, if so, would notify the First Nation and the federal Minister. The federal Minister might then also approve the land use plan, which would take effect on the date of his or her approval. A party that did not approve the plan would so notify the other parties and the planning board of its reasons. The planning board would then consider these reasons, make any modifications to the plan "that it consider[ed] desirable," and re-submit the revised plan to the approval process outlined above (clause 43).

Certain aspects of this process are not entirely clear. Bill C-6 does not set out a timeframe within which parties would have to approve of or object to a plan, nor does it define the number of times a plan could be re-submitted to the approval process. It does not provide for a dispute resolution process, should one or more parties continue to object to a proposed plan.

After acceptance of a plan, the planning board would monitor its implementation and, where authorized by the plan, consider applications for exceptions to it (clause 44).(11)

A planning board would be authorized to cooperate with any body responsible for land use planning in any other area adjacent to the settlement area, within or outside the Northwest Territories; it might develop joint land use plans with such bodies for the settlement area and an adjacent region of the Mackenzie Valley (clause 45). Areas adjacent to the Gwich’in settlement area are the Yukon Territory, the Inuvialuit settlement region and the Sahtu settlement area. Areas adjacent to the Sahtu settlement area are the Yukon Territory, the Gwich’in settlement area, the Inuvialuit settlement region, Nunavut, and the southern Mackenzie Valley (Deh Cho and North Slave regions). This provision would appear to preclude joint planning with bodies in these areas that do not have officially sanctioned land use planning authority.

The Gwich’in and Sahtu First Nations, federal and territorial departments and agencies, and bodies with legal authority to issue authorizations related to the use of land or waters or the deposit of waste would be required to exercise their powers in compliance with the applicable land use plan in a settlement area (clause 46).

A planning board would be required to review activities for conformity with a land use plan in two instances: (a) if the activities were referred to the board by any of the parties listed; or (b) if an application was made by any person directly affected by the activity for which an application for a licence, permit or authorization had been made. That is, the compliance process would not be automatic, but would be triggered by specified referrals or applications. Such a referral or application would have to be made before the licence, permit or authorisation was issued. A planning board would be required to transmit its decision regarding conformity with land use plans only to those parties that had made the application or referral (clause 47).

Under this provision, a person who might be "directly affected" by an activity for which an application for a licence had been made would need to be aware of such an application before being able to request review by a planning board. However, it is not clear that this information would always be available in time to permit such a request.(12) In addition, clause 47 does not provide criteria for determining whether a person would be "directly affected."

A planning board might, on application or on its own motion, make any amendments to a land use plan that it deemed necessary. The bill does not define, for the purposes of this clause, who might make an application for an amendment. Amendments would be subject to the approval process set out in clauses 42 and 43, "with such modifications as are required" (clause 48). These modifications are not specified.

Planning boards would be required to keep a public record of all applications and decisions and to furnish requested copies of a land use plan or of any board decision (clause 49).

Each planning board would be required to carry out a comprehensive review of its land use plan within five years after the plan took effect, and thereafter, every five years or at intervals agreed to by the federal Minister, the territorial Minister and the First Nation of the settlement area.

Part 3 contains provisions for the establishment of the Gwich'in Land and Water Board and the Sahtu Land and Water Board (land and water boards) and for the regulation of land, waters and waste deposit in the Gwich'in and Sahtu settlement areas.

With specified exceptions, land and water regulation provisions under Part 3 would not apply to the use of land or waters or the deposit of waste within a national park to which the National Park Act applied, or within lands acquired pursuant to the Historic Sites and Monuments Act (clause 52). Part 3 would also not apply to the use of land within the boundaries of a local government, "to the extent that the local government regulates that use." The extent of local government regulation would be determined jointly by the responsible land and water board and the territorial Minister, in consultation with the local government (clause 53).

For each of the Gwich'in and Sahtu settlement areas, a land and water board would be established whose composition would be identical to that of planning boards established under Part 2.

A land and water board would have jurisdiction over all uses of land in the settlement area (including those required for the exercise of subsurface rights) for which a permit was necessary under Part 3 (clause 59)(14) and all uses of water and deposits of waste in the settlement area for which a licence was required under the Northwest Territories Waters Act.(15) For purposes of the latter jurisdiction, a land and water board would exercise the licence-related and other powers of the NWT Water Board under that Act and, references in it to that Board would be read as references to the land and water board (clause 60).(16)

In recognition that the use of water or deposit of waste in a settlement area may have impacts extending beyond that area, Bill C-6 provides that in such cases, subsections 14(4) and (5) of the Northwest Territories Waters Act, which provide for compensation in the event of adverse effects, would apply to protect the rights of licensees or other persons listed in those subsections (clause 60(3)).(17)

Land and water boards would be precluded from issuing or amending licences and permits that did not conform with the Part 2 land use plan for the settlement area (clause 61), and would also have to ensure that the conditions of Part 5 (environmental assessment and impact review) were met before authorizing a proposed development (clause 62).

A land and water board would have to provide copies of an application for a licence or permit to the owner of the land to which the application related and to the appropriate government departments and agencies. It would also be required to notify "affected" communities or First Nations (in the French version, "la première nation concernée") of such an application (clause 63).(18) The time period for representations is not specified.

In addition, a board would have to seek and consider the advice of any affected First Nation and any appropriate federal or territorial government body regarding potential impacts of an application’s proposed land or water use on "heritage resources," as defined at clause 2 (clause 64(1)), and renewable resources boards set up under the Agreements regarding wildlife that might be affected by a proposed use of land or waters or deposit of waste (clause 64(2)). There would be no obligation to seek and consider the advice of First Nations outside the settlement areas regarding potential impacts on wildlife or heritage resources.

Before issuing a permit for a use of land, a land and water board would be required to consult with the responsible territorial or federal Minister in relation to Crown land, or the owner of the land in other cases, as to whether the permit should contain conditions for the protection of the environment (clause 69). There would be no obligation for a land and water board to consult with First Nations regarding any such conditions.

A land and water board could require security to be posted with the federal Minister as a condition for issuing a permit. In the event of damage to the land resulting from a permittee’s contravention of any provision of the regulations or of a permit, the board could request that all or part of this security be applied to the costs of repairing the damages. This would not affect liability for "any" damages to land in excess of the posted security, presumably including damages arising from causes unrelated to a contravention of the regulations or a permit (clause 71).

A land and water board would be obliged to maintain a public register of applications and permits, to which the public would have access (clause 72).(19)

Certain water use rights of the Gwich’in and Sahtu regarding wildlife harvesting, traditional use of waters, and the exclusive use of waters flowing through their "first nation lands" would be recognized, as would the right to "substantially unaltered" waters flowing through their "first nation lands" or adjacent to these lands (clauses 73-75). Notwithstanding this recognition, a land and water board could authorize the use of land or waters or the deposit of waste that would, in its opinion, interfere with the right to unaltered waters, provided certain conditions were satisfied (clause 76). One such condition would pertain to compensating the First Nation for any loss or damage resulting from any substantial alteration to the quality, quantity or rate of flow of waters when on or flowing through its "first nation lands" or water adjacent to those lands (clause 77). Bill C-6 would also provide for the Gwich’in and Sahtu First Nations to be compensated for substantial alterations to these waters resulting from their use or the deposit of waste in areas of the Northwest Territories outside the settlement area, or national parks or historic sites in the settlement area (clause 78).

Before a land and water board could issue any type A licences referred to in the Northwest Territories Waters Act, the federal Minister’s approval would be required (clause 81).(20) Approval of other licences would be in accordance with the provisions of the Northwest Territories Waters Act, pursuant to the terms of clause 60.

The federal Minister would also have the power, after consulting with a land and water board, to give written, binding, policy directions with respect to any of the board’s functions. Certain exceptions would apply (clause 82). The federal Minister has similar powers under the Northwest Territories Waters Act.

Provisions under this heading would permit the federal Minister to designate inspectors in relation to land use and set out their powers to determine whether the regulations or the conditions of a land use permit were being met. Analogous provisions for inspection of water use and deposit of waste are contained in the Northwest Territories Waters Act.

The Governor in Council would have the power, following consultations by the federal Minister with First Nations of the Mackenzie Valley, to make regulations respecting the protection, use and control of lands in the entire Mackenzie Valley. Among other matters, regulations might prohibit uses of land except as permitted; prescribe conditions applicable to the issuing, amendment and cancellation of permits; define eligibility for permits; authorize uses of lands not authorized in permits; and enable a land and water board or a land inspector to relieve permittees from obligations under the regulations (clause 90). The power of the Governor in Council to make regulations concerning water and deposits of waste in the Northwest Territories is provided for in the Northwest Territories Waters Act.

This section of Bill C-6 would establish the Mackenzie Valley Land and Water Board (the Mackenzie Valley Board) and would provide for the continuance of the Gwich’in and Sahtu Land and Water Boards as its regional panels. Bill C-6 provides that Part 4 might come into effect after Part 3 (see clause168(2)); in this event, the Gwich’in and Sahtu Boards would begin operating prior to the establishment of the Mackenzie Valley Board, and would become regional panels only at a later date. As a result, there is some overlap between the provisions of Parts 3 and 4.

Exceptions to the application of Part 4 would generally mirror those set out in Part 3, with the addition, in relation to land and water use, of a reserve for a national park (clause 97).

Upon the establishment of the Mackenzie Valley Board, the Gwich’in and Sahtu Land and Water Boards would become its regional panels (clause 99). The Mackenzie Valley Board would consist of 17 members, ten of whom would belong to these regional panels. The other members would be: a chairperson; three members appointed following consultation by the federal Minister with First Nations, as opposed to on their nomination as in Parts 2 and 3; one member appointed on the nomination of the territorial minister, and two other members who, by reference to general provisions in Part 1, would be federal nominees.

The Mackenzie Valley Board would have jurisdiction over all uses of land or waters or deposits of waste in the Mackenzie Valley for which a permit was required under Part 3 or a licence was required under the Northwest Territories Waters Act. It would have the powers set out in Part 3, other than those relating to compensation under clauses 78 and 79 above. The regional panel for a settlement area would also exercise Part 3 powers in respect of that area, including the powers under clauses 78 to 80 (clause 102).

Applications for uses of land or waters or waste deposits that would or might take place or have an impact in an area extending beyond a single settlement area or outside a settlement area would be made to the Mackenzie Valley Board; applications respecting a single settlement area would be made to the appropriate regional panel. Various provisions would require the exchange of information and the referral of applications between the Mackenzie Valley Board and the regional panels (clause 103).

Applications to the Mackenzie Valley Board (relating to an area spanning settlement areas or extending beyond or outside a settlement area) would be disposed of by at least three members designated by the chairperson for that purpose. This group would have to include at least one member appointed on the nomination of or following consultation with First Nations and at least one member appointed in another way (clause 104).

If a proposed use of land or water or a deposit of waste was likely to have an impact in an area outside the Mackenzie Valley, within or outside the Northwest Territories, the Mackenzie Valley Board could consult with the body with regulatory authority over such uses and could, with the approval of the federal Minister, pursue measures for the coordination of their activities.

The Governor in Council could, on the recommendation of the federal Minister, establish up to three additional regional panels of the Mackenzie Valley Board. This provision would enable, although not require, the creation of panels for each of the three remaining regions of the Mackenzie Valley (Deh Cho, North Slave and South Slave). The area over which each additional panel would have jurisdiction would be specified by the Governor in Council, following consultation with "affected first nations." Additional panels would have the same powers as the Gwich’in and Sahtu panels.

Although their exact membership is not specified, additional panels would have to include one member of the Mackenzie Valley Board appointed following consultation with First Nations and one member not so appointed. The chairperson would be appointed in the manner set out in the general provisions in Part 1. Members of additional regional panels who were not already members of the Mackenzie Valley Board would become members on their appointment to the panel (clause 108).

The federal Minister would exercise the same powers in relation to the Mackenzie Valley Board and its regional panels as would be provided for in relation to the Gwich’in and Sahtu boards established under Part 3 (clause 109).

An inspector designated by the federal Minister in relation to the use of land under Part 4 would have the same powers as an inspector under Part 3.

This section of Bill C-6 would establish the agency responsible for environmental assessment processes throughout the Mackenzie Valley, and prescribe how such processes would be undertaken.

As originally proposed, the Mackenzie Valley Environmental Impact Review Board (the Review Board) would have consisted of a maximum of eleven members, including a chairperson. Half the members, excluding the chairperson, would be appointed on the nomination of Mackenzie Valley First Nations, with at least one nominated by each of the Gwich’in and Sahtu First Nations; at most one half of the remaining members would be nominated by the territorial Minister, as defined at clause 2, with federal nominees representing the balance under the terms of Part l. A Review Board quorum would be five members, including the chair, two First Nation members and two government members (clause 112).

Following calls by First Nations and other representations for either a minimum Review Board membership of eleven or greater First Nation representation on the Review Board, the House Committee modified the membership provision to no fewer than seven members, with no maximum figure set. Provisions dealing with the Review Board’s proportional composition and quorum were not modified. DIAND officials explained that, by legislating the floor rather than the ceiling of Review Board membership, the clause as amended aimed to accommodate the concerns of First Nation groups that their nominees for Review Board membership might be asked to represent other groups that came from the same region but had separate representative structures. Assuming the Review Board were to function with seven (or nine) members, however, the effect of the House Committee’s amendment would be that only one (or two) Review Board appointment(s) might be made on the nomination of all Mackenzie Valley First Nations, as defined, other than the Gwich’in and Sahtu First Nations. Some Mackenzie Valley First Nations testifying before the Senate Committee called for increasing the Review Board’s minimum membership and Aboriginal representation on it.

This heading contains provisions relating to the purposes, principles and other fundamental features of environmental assessment in the Mackenzie Valley.

Confirming the Review Board as the principal body for environmental assessment purposes, Bill C-6 states explicitly that, saving prescribed exceptions, the Canadian Environmental Assessment Act would not apply to proposals for "developments" in the Mackenzie Valley (clause 116). The definition of "development" refers to undertakings on land or water in the Mackenzie Valley,(22) without reference to proposed developments under land or water. According to DIAND officials, Part V would apply to such developments.(23)

Certain factors would have to be considered in every environmental assessment and impact review of proposed developments (i.e., steps two and three of the process), with additional factors enumerated for environmental impact review. In addition to environmental factors, these would include "any comments submitted by members of the public in accordance with the regulations." No obligatory considerations are listed in relation to preliminary screening (clause 117).

Bill C-6 provides that: no licence or other authorisation required for a development might be issued under any federal or territorial law unless the requirements of Part 5 were complied with in relation to that development (clause 118(1)); no irrevocable action might be taken in relation to a development proposed by the Gwich’in or Sahtu First Nation, a local government or a federal or territorial government body for which no authorization was required, until the requirements of Part 5 were complied with (clause 118(2)).

Because Part 5 requirements would not be uniform for all developments, this provision, read with other Part 5 provisions, indicates that environmental review would not apply to all proposed developments or all phases of proposed developments in the Mackenzie Valley. First, it is not clear whether the above classification would itself necessarily cover all categories of potential developments. Second, in addition to exempting development proposals responding to listed emergency situations (clause 119), Bill C-6 provides a number of other explicit exemptions, as outlined below. The proposal that "irrevocable action" would not proceed unless there was compliance with Part 5, also suggests that at least some action might be taken on certain developments prior to or without reference to environmental review.

The Review Board would be authorised to set guidelines for the environmental review process in the Mackenzie Valley, following consultation with First Nations and ministers from both levels of government (clause 120). Such guidelines would be subject to any regulations made under clause 143(1)(a), which would enable the Governor in Council to prescribe procedures for each phase of the environmental review process generally, including the form and contents of reports required under Part 5.

Enumerated decision-makers involved with environmental review would be required to issue and to make available to the public written reasons for "any decision or recommendation" made under the environmental review process (clause 121). As no explicit mention is made of the various reports that would form part of that process, it is unclear whether this obligation would apply to these reports in whole or in part.

The preliminary screening process is outlined separately for development proposals requiring authorization, without reference to the applicant and proposals for development by enumerated applicants but not requiring an authorization.

In the former case, the process would be triggered only by applications for licences or other authorisations made pursuant to those federal or territorial laws specified in regulations made under clause 143(1)(b). Upon receipt of such an application, a regulatory authority or designated regulatory agency would be required to notify the Review Board in writing and conduct a preliminary screening. Certain developments would be exempted from this requirement: those whose impact on the environment was declared by regulations under clause 143(1)(c) to be insignificant, and those whose examination was "declared [by those regulations] to be inappropriate for reasons of national security" (clause 124(1)). Criteria for making these determinations are not set out.

In the second case, the Gwich’in or Sahtu First Nation or a department or agency of either level of government proposing a development for which no licence was required would also be required to notify the Review Board and conduct a preliminary screening. Exemptions would apply as above and also where, in the opinion of the proposer, the development’s impact would be "manifestly insignificant" (clause 124(2)).(24)

Any body conducting a preliminary screening(25) would be required to determine and report to the Review Board whether, in its view, the development might have a significant adverse impact on the environment or be a cause of public concern; if its finding was in the affirmative, the body would be required to "refer" the proposal to the Review Board for environmental assessment (clause 125).

Bill C-6 would prescribe the circumstances in which the Review Board would be obliged to carry out an environmental assessment: (1) where a proposal for development was "referred" following a preliminary screening as outlined above; (2) where, notwithstanding any determination on preliminary screening, a proposal for development was "referred" to it by specified bodies. This provision seems ambiguous; since the term "referred" as used in relation to preliminary screening would ostensibly apply only to determinations resulting in environmental assessment in any case, the phrase "notwithstanding any determination" would appear redundant. Bill C-6 would also provide that, notwithstanding any determination on preliminary screening, and without reference to "referral," the Review Board might conduct an environmental assessment on its own motion (clauses 126(1)-(3)). No criteria are provided for directing when this discretion might be exercised.

A related ambiguity would seem to affect the provision applying the two preceding paragraphs to empower the Review Board, in prescribed circumstances, to conduct environmental assessment in the absence of preliminary screening.(26) Because Bill C-6 would make no provision for notices, reports or "referrals" to the Review Board other than in relation to preliminary screening, it is not clear how either the Review Board’s obligation or its discretion to conduct environmental assessment would be triggered in these circumstances (clause 126(4)).(27)

Depending on the results of its assessment, the Review Board would: (1) determine that an environmental impact review need not be conducted; (2) order an environmental impact review, subject to ministerial referral to joint review as described below; (3) recommend that approval of the development be conditional on preventive measures, or (4) recommend that the proposal be rejected without an environmental impact review.

The Review Board would be obliged to make a report of an environmental assessment to the federal Minister and to a designated regulatory agency with licensing authority in respect of a development, and to provide copies to bodies with specified connections to the development.(28) It seems that copies would not have to be made more widely available, for example to First Nations or to the public who are not connected to the development.(29)

Following consideration of the Review Board report, the federal Minister and responsible ministers to whom it was distributed might agree on one of several approaches:(30) to order an environmental impact review, notwithstanding a Review Board determination to the contrary; to adopt or refer back for further consideration a Review Board recommendation that a proposal be either approved with preventive measures or rejected;(31) after consulting with the Review Board, to adopt its recommendation with modifications, or reject it and order an environmental impact review; or where it was determined to be in the national interest, to refer the proposal to the federal Minister of the Environment for a joint review under the Canadian Environmental Assessment Act. Criteria defining the "national interest" for purposes of such joint review referrals are not provided (clause 130(1)).

By way of contrast with the distribution of the Review Board report, the ministerial decision agreed upon would have to be distributed to the Review Board and to every enumerated body affected by the decision, including local government, First Nations, regulatory authorities, and so forth. These bodies would be required to comply with the decision to the extent of their authority (clause 130(4) and (5)).

In accordance with provisions in the Agreements, under Bill C-6 a designated regulatory agency would have decision-making authority in relation to specified aspects of the environmental review process. The agency would be required to take one of the actions open to the ministers with respect to Review Board recommendations for conditional approval or rejection of a proposal, as outlined above. To the extent of its authority, the agency would be required to carry out any Review Board recommendation that it adopted (clause 131).

In cases other than those involving joint review, cooperation or transregional developments, environmental impact reviews of proposals for developments in the Mackenzie Valley would be conducted by "review panels." These would consist of a minimum of three persons, including the chairperson, to be appointed by prescribed members of the Review Board, and potentially including persons with particular expertise. Special membership provisions would prescribe minimal Gwich’in or Sahtu representation on review panels studying proposed developments to be carried out in whole or in part in one of the Gwich’in or Sahtu settlement areas (clause 132).

Although it does not do so with respect to preliminary screening and environmental assessment, Bill C-6 prescribes components of an environmental impact review. These would include the preparation of terms of reference by the Review Board; the submission of an impact statement by the applicant for an authorization or by the person or body proposing the development, and its distribution and public notification; analysis of the proposal considered appropriate by the review panel, and public consultations or hearings in affected communities. This would appear to represent the first stage in the environmental review process to prescribe a public participation mechanism.(32) It would also appear to leave open the possibility of written consultations.

A review panel report with prescribed contents, and recommending that the proposal be approved, rejected or approved with conditions would (like an environmental assessment report by the Review Board) be submitted to the federal Minister and to a designated regulatory agency from which authorization was required for the development. Unlike the Review Board, the review panel would not have to provide copies of its report to bodies with specified connections to the development (clause 134).

The federal Minister and responsible ministers, having considered the review panel’s report, might agree to adopt its recommendation; refer it back to the review panel for further consideration; or, having consulted the review panel, agree to adopt a modified recommendation or reject it (clause 135). A designated regulatory agency would be required to exercise one of these options, and to carry out any review panel recommendation that it adopted to the extent of its authority (clause 137).

The federal Minister would be obliged to distribute any decision in respect of a review panel report/recommendation to specified bodies affected by the decision, each of which would be required to conform to it (clause 136).(33)

This heading provides for circumstances in which joint review or another co-operative mechanism would or might apply for purposes of environmental review in the Mackenzie Valley, and outlines the process features of such review. The listed circumstances would include those in which a joint review panel had required to be established under the Canadian Environmental Assessment Act in relation to a ministerial referral under clause 130(1)(c),(34) or in which, because of a Mackenzie Valley development’s possible significant adverse effects outside the Mackenzie Valley, the Review Board would be required to advise the environmental authority in that region and request its cooperation in conducting an environmental assessment.

Under this heading, the Board would be required to engage, to the extent possible, in coordinated environmental assessment of developments that straddled the Mackenzie Valley and another region. For example, by agreement between the Review Board(35) and the federal Minister of the Environment, a joint review panel might be established under the Canadian Environmental Assessment Act to conduct an environmental impact review of a development to be carried out partly in a region of the Northwest Territories or Yukon Territory that was adjacent to the Mackenzie Valley.

The Governor in Council’s regulation-making authority in relation to Part 5 might be exercised only following the prescribed consultative process, which would have to include First Nations of the Mackenzie Valley. In addition to those regulations previously mentioned having to do with Review Board procedures(36) or exemptions from preliminary screening,(37) the Governor in Council might also make regulations establishing a public registry and prescribing public accessibility to its records; amending the schedule by adding or deleting the name of any designated regulatory agency other than a land and water board, and for carrying out the purposes of Part 5 generally.

A full comparison of the environmental review program proposed by Bill C-6 for the Mackenzie Valley and the process set out in the Canadian Environmental Assessment Act (CEAA) would be extremely complex owing to major differences between in their respective processes and agencies; nevertheless, the selected illustrations in the appended table(38) may prove useful.

This section of Bill C-6 results from provisions in the Agreements requiring implementing legislation to provide "a method of monitoring the cumulative impact of land and water uses on the environment in the Mackenzie Valley, and for periodic, independent, environmental audits which shall be made public."(39)

Under Bill C-6, the "responsible authority" - either designated by regulation or the federal Minister - would be required to carry out the monitoring functions described above through data collection and analysis as provided for by regulations(40) (clause 146). Depending on the identity of the responsible authority, these functions would be carried out either in consultation with the First Nations of the Mackenzie Valley, or with a right of participation by the Gwich’in and Sahtu First Nations, as provided by the regulations (clause 147).

The federal Minister would also be required to have an independent environmental audit conducted once every five years, in which the Gwich’in and Sahtu First Nations would also be entitled to participate in the manner provided by the regulations (clause 148). Other Mackenzie Valley First Nations and the public are not mentioned in connection with either the environmental monitoring or environmental audit process.

Transitional provisions are commonly included in bills when an existing legislative regime would be replaced by a new regime. Among other matters, the relevant sections in Bill C-6, as amended by the House Committee to address concerns with the transitional regime expressed by industry and territorial representatives, would provide for:

The intent of such provisions is to enable a smooth transition between regimes and to ensure that the rights of existing licence and permit holders would be continued.

These clauses propose certain modifications to the Access to Information Act, the Canadian Environmental Assessment Act, the Northwest Territories Waters Act , and the Privacy Act, to reflect the various new boards and procedures that would be established by the enactment of Bill C-6.

Bill C-6 would come into force on a day fixed by order of the Governor in Council. Clause 168(2) would provide that Part 4 (provisions respecting the Mackenzie Valley Land and Water Board and regional panels) and subsections 160(2), 165(2) and 167(2) (consequential amendments that respect the Mackenzie Valley Land and Water Board ) could come into effect on a later day to be fixed by order of the Governor in Council.

Although Bill C-6 arises out of requirements of the Gwich’in and Sahtu Dene and Métis Comprehensive Land Claim Agreements, several of the boards it would establish would have authority over areas other than those covered by these settlements. In particular, the Mackenzie Valley Land and Water Board and Environmental Impact Review Board would exercise jurisdiction over the entire Mackenzie Valley. While this approach is consistent with commitments in the Agreements that an integrated management regime would be created for the entire valley, it has also been a major source of concern for First Nations and Aboriginal groups from the Deh Cho, South Slave and North Slave regions of the southern Mackenzie Valley that are not covered by land claim agreements. During the consultation-drafting phase of Bill C-6, these groups expressed general opposition to the bill, based on the view that it encroached on Aboriginal rights and threatened self-government negotiations and the First Nation treaty relationship with the Crown.

The addition of non-derogation and review provisions to the bill in response to this opposition does not appear to have alleviated these preoccupations significantly.(41) During the House Committee’s hearings on Bill C-6, representatives of the Gwich’in and Sahtu First Nations were the only Aboriginal witnesses to support the bill fully. The testimony of southern Mackenzie Valley First Nation and Aboriginal witnesses, while generally endorsing the principle of integrated resource management for the Mackenzie Valley, and specifically supportive of Gwich’in and Sahtu rights arising from the Agreements, reflected a range of reactions extending from reiterated rejection of the bill’s application to them in its current form, to more narrowly focused criticisms related to that application.

Concerns expressed before the House Committee remained generally focused on the bill’s implications for Aboriginal and treaty rights and for pending and future land claim and self-government negotiations, in respect of which the bill was viewed as offering inadequate protection or assurances for the future. It was argued, for instance, that the provisions of Bill C-6 would be held up as the model outcome in future negotiations, despite the fact that they are based on Agreements concluded prior to fundamental changes in the government’s policy on both self-government and joint negotiation of land claim and self-government agreements.

Proposed amendments on these basic issues by various First Nations and Aboriginal representatives included recommendations to modify the bill’s definitions so as to make the bill applicable only to the Gwich’in and Sahtu First Nations and to their settlement areas; to have explicit inclusion of certain Dene or Métis organizations in the definition of "first nation"; to make the bill’s application subject to future land claim and self-government agreements; to have explicit recognition that the provisions of the bill would be without prejudice to existing or future land claim and self-government agreements; to include all southern Mackenzie Valley Aboriginal groups in the bill’s numerous consultation provisions; to have explicit recognition, both among the boards’ guiding principles and the bill’s substantive provisions, of the constitutionally protected status of Aboriginal rights.

Various amendments to the process aspects of Bill C-6 were also proposed by some First Nations and Aboriginal witnesses from the southern Mackenzie Valley with a view to rendering the bill more explicitly inclusive of their interests.

Aboriginal representatives were not the only critics of Bill C-6 during the House Committee’s hearings. For example, major industry interests in the Northwest Territories and the Mackenzie Valley also raised a number of concerns more specific to their conduct of operations in the north. On the one hand, spokespersons and submissions for the Northwest Territories Chamber of Mines, the Northwest Territories Power Corporation and Diavik Diamond Mines Incorporated expressed general support for the bill’s principles and intent, endorsed the objective of integrated resource management for the Mackenzie Valley and underscored the importance of speedy resolution of outstanding land claims in the region. On the other hand, certain representatives viewed the practical implications of the regime proposed by the bill as potentially unduly harmful to industry; they characterized the regime as unnecessarily complex, under-resourced and unworkable in the absence of significant modification. Although the range of issues raised was fairly broad, the scope and application of transitional, compensation and environmental assessment provisions caused special concern, and were the focus of many recommended amendments to the bill.(42)

On a more general level, it was also suggested by certain industry submissions that the bill’s implementation should be phased in or delayed outside the Gwich’in and Sahtu settlement areas until other Aboriginal groups were better able to represent their interests or until settlement of other land claims in the Mackenzie Valley.

Also critical of one or more aspects of Bill C-6 were the representations and submissions of other business, professional and public interest environmental groups not directly associated with planning for implementation of the proposed legislation. Representations of the the Canadian Arctic Resources Committee (CARC), for example, in addition to pointing to specific provisions of the bill as problematic, recommended that the application of Bill C-6 be limited, should its effect on outstanding land claims be assessed as prejudicial. CARC also addressed more fundamental questions about the adequacy of both the process for developing legislation to implement land claims, and the long-term goals of integrated resource management.

COMPONENTS
OF ASSESSMENT

BILL C-6

C.E.A.A.

Potential Phases

1. Preliminary screening by regulatory authority/agency or proposer

2. Environmental Assessment by Review Board

3. Environmental Impact Review by review panel of Review Board

1. Screening (minor projects)

Comprehensive study (selected major projects designated by regulation) by responsible authority⁽¹⁾

2. Mediation and/or panel review upon referral by Minister of the Environment

3. Follow-up program by responsible authority

Public involvement in process

1. Purpose provision: no requirement

2. Factors for obligatory consideration at Phase 2 and 3: "any comments submitted"

3. Preliminary screening: no requirement

4. Environmental Assessment: no requirement

5. Environmental Impact Review: consultation or hearings

1. Purpose provision: opportunity for public participation required

2. Factors for obligatory consideration at Phases 1 and 2: "comments from the public that are received"

3. - Screening: discretionary or according to regulations
- Comprehensive study: mandatory

4. - Mediation: participation of "interest parties" allowed
- Review panel: mandatory hearings
- Minister required to establish participant funding program to facilitate public participation in both these process

Ultimate decision-maker following full assessment (Phase 3 under Bill C-6, Phase 2 under C.E.A.A.)

Federal Minister of Indian Affairs and Northern Development or delegate, together with responsible ministers OR designated regulatory agency

Responsible authority

Public registry

Discretionary, may be established by regulations of the Governor in Council

Mandatory, detailed provisions in Act

Environmental Assessment Agency

None

Mandate of Review Board to act as main instrument for environmental assessment and environmental impact review

Canadian Environmental Assessment Agency established by the Act with broad mandate in addition to administration of environmental review process: promotion of uniformity in assessment of environmental effects, research into and promotion of environmental assessment, et cetera

1 The Act defines a responsible authority as a federal authority required under the Act to ensure that an environmental assessment of a project is conducted. A "federal authority" is defined, in turn, as a federal Minister, designated Crown agencies, and departments and other bodies designated by regulation.

APPENDIX 2
NUNAVUT AND THE NEW WESTERN TERRITORY

To obtain a copy of appendix 2, please call 996-3942.