Northwest Territories Devolution Act (S.C. 2014, c. 2)
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Assented to 2014-03-25
PART 41998, c. 25MACKENZIE VALLEY RESOURCE MANAGEMENT ACT
Amendments to the Act
225. Subsection 142.25(5) of the Act is replaced by the following:
Marginal note:Notice
(5) An inspector shall, if it is reasonable to do so, give the Gwich’in or Sahtu First Nation prior notice of entry by the inspector on its first nation lands.
226. (1) Paragraph 143(1)(d) of the Act is replaced by the following:
(d) prescribing the form of the register to be maintained by the Review Board under section 142.1 and the information to be entered in it, and respecting the fees, if any, to be paid to examine the register or to obtain copies from it;
(2) Subsection 143(1) of the Act is amended by striking out “and” at the end of paragraph (f) and by adding the following after paragraph (g):
(h) respecting any consultation with a first nation, the Tlicho First Nation, the Tlicho Government or an aboriginal people who use an area outside the Mackenzie Valley that may occur under this Part, including the manner in which it is to be conducted, and providing for the delegation of certain procedural aspects of such consultation; and
(i) respecting the recovery of amounts and costs for the purposes of section 142.01, including prescribing anything that is to be prescribed by that section and exempting any class of person or body that proposes to carry out the development from the application of that section.
Marginal note:2005, c. 1, s. 90(3)
(3) Subsection 143(2) of the Act is replaced by the following:
Marginal note:Consultation with Review Board
(2) Regulations may only be made or amended under paragraph (1)(a), (d), (e), (f), (g), (h) or (i) or amended under paragraph (1)(b) or (c), following consultation by the federal Minister with the Review Board.
Marginal note:Consultation — Mackenzie Valley Land and Water Board
(2.1) In addition to the consultation referred to in subsection (2), the federal Minister shall consult the Mackenzie Valley Land and Water Board before making or amending any regulations under paragraph (1)(h) that relate to a preliminary screening by that Board.
(4) Subsection 143(3) of the Act is replaced by the following:
Marginal note:Exemptions
(3) No development is to be exempted for a reason set out in paragraph 124(1)(b) if it is a designated project or belongs to a class of designated projects, within the meaning of the Canadian Environmental Assessment Act, 2012, by virtue of regulations made under paragraph 84(a) of that Act.
(5) Section 143 of the Act is amended by adding the following after subsection (3):
Marginal note:Externally produced documents
(4) A regulation made under this Part may incorporate by reference documents that are produced by a person other than the federal Minister or a body.
Marginal note:Reproduced or translated material
(5) A regulation made under this Part may incorporate by reference documents that the federal Minister reproduces or translates from documents produced by a body or person other than the federal Minister
(a) with any adaptations of form and reference that will facilitate their incorporation into the regulation; or
(b) in a form that sets out only the parts of them that apply for the purposes of the regulation.
Marginal note:Jointly produced documents
(6) A regulation made under this Part may incorporate by reference documents that the federal Minister produces jointly with another government for the purpose of harmonizing the regulation with other laws.
Marginal note:Internally produced standards
(7) A regulation made under this Part may incorporate by reference technical or explanatory documents that the federal Minister produces, including
(a) specifications, classifications, illustrations, graphs or other information of a technical nature; and
(b) test methods, procedures, operational standards, safety standards or performance standards of a technical nature.
Marginal note:Incorporation as amended from time to time
(8) Documents may be incorporated by reference as amended from time to time.
Marginal note:For greater certainty
(9) Subsections (4) to (8) are for greater certainty and do not limit any authority to make regulations incorporating material by reference that exists apart from those subsections.
Marginal note:Accessibility
(10) The federal Minister shall ensure that any document that is incorporated by reference in the regulation is accessible.
Marginal note:Defence
(11) A person is not liable to be found guilty of an offence or subjected to an administrative sanction for any contravention in respect of which a document that is incorporated by reference in the regulation is relevant unless, at the time of the alleged contravention, the document was accessible as required by subsection (10) or it was otherwise accessible to the person.
Marginal note:No registration or publication
(12) For greater certainty, a document that is incorporated by reference in the regulation is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.
Marginal note:2005, c. 1, s. 91
227. Subsection 144(1) of the Act is replaced by the following:
Marginal note:Schedule
144. (1) The Governor in Council may, by regulations made following consultation by the federal Minister with the territorial Minister, the Review Board, the first nations and the Tlicho Government, amend the schedule by adding, or by deleting, the name of any agency, other than the Mackenzie Valley Land and Water Board, that exercises regulatory powers under territorial or federal laws and that is not subject to specific control or direction by a minister of the federal or territorial government or the Governor in Council.
228. The Act is amended by adding the following after section 144:
Prohibitions, Offences and Punishment
Marginal note:Obstruction
144.01 It is prohibited to knowingly obstruct or hinder an inspector who is exercising their powers or performing their duties and functions under this Part.
Marginal note:False statements or information
144.02 It is prohibited to knowingly make a false or misleading statement or knowingly provide false or misleading information in connection with any matter under this Part to any person who is exercising their powers or performing their duties and functions under this Part.
Marginal note:Offence — certificates
144.03 (1) Every person or body that proposes to carry out a development and that contravenes section 117.1 and every person who contravenes subsection 142.23(3) or an order made under subsection 142.29(1) is guilty of an offence and is liable on summary conviction
(a) for a first offence, to a fine not exceeding $250,000 or to imprisonment for a term not exceeding one year, or to both; and
(b) for a second or subsequent offence, to a fine not exceeding $500,000 or to imprisonment for a term not exceeding one year, or to both.
Marginal note:Obstruction or false statements or information
(2) Every person who contravenes section 144.01 or 144.02 is guilty of an offence and is liable on summary conviction to a fine not exceeding $250,000 or to imprisonment for a term not exceeding one year, or to both.
Marginal note:Continuing offences
(3) An offence under subsection (1) that is committed or continued on more than one day constitutes a separate offence for each day on which it is committed or continued.
Marginal note:Due diligence defence
(4) No one is to be convicted of an offence under subsection (1) if they establish that they exercised due diligence to prevent the commission of the offence.
Marginal note:Limitation period or prescription
144.04 No proceedings in respect of an offence under this Part are to be instituted more than five years after the day on which the federal Minister becomes aware of the acts or omissions that constitute the alleged offence.
Marginal note:Admissibility of evidence
144.05 (1) In proceedings for an offence under this Part, a certificate, report or other document of the federal Minister, the Review Board, a regulatory authority, a designated regulatory agency or an inspector that is purported to have been signed by that person, board or authority is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, is proof of the matters asserted in it.
Marginal note:Copies and extracts
(2) In proceedings for an offence under this Part, a copy of or an extract from any document that is made by the federal Minister, the Review Board, a regulatory authority, a designated regulatory agency or an inspector that appears to have been certified under the signature of that person, board or authority as a true copy or extract is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, has the same probative force as the original would have if it were proved in the ordinary way.
Marginal note:Presumed date of issue
(3) A document referred to in this section is, in the absence of evidence to the contrary, presumed to have been issued on the date that it bears.
Marginal note:Notice
(4) No document referred to in this section is to be received in evidence unless the party intending to produce it has provided reasonable notice of that intention to the party against whom it is intended to be produced together with a copy of the document.
229. The Act is amended by adding the following after section 144:
PART 5.1REGIONAL STUDIES
Marginal note:Establishment of committee
144.1 (1) The federal Minister may establish a committee to conduct a study of the effects of existing or future physical activities carried out in a region of the Mackenzie Valley.
Marginal note:Mandate and appointment of members
(2) If the federal Minister establishes a committee, he or she shall establish its terms of reference and appoint as a member of the committee one or more persons.
Marginal note:Advice — first nations
144.2 Before establishing the committee’s terms of reference, the federal Minister shall seek and consider the advice of the territorial government, any affected first nation and, if the study affects the Tlicho First Nation, the Tlicho Government.
Marginal note:Participation in study
144.3 The federal Minister, if he or she considers it appropriate, may enter into an agreement or arrangement with any person or body with relevant knowledge or expertise with respect to their participation in the committee’s study.
Marginal note:Joint establishment of committee
144.4 If the federal Minister is of the opinion that it is appropriate to conduct a study of the effects of existing or future physical activities carried out in a region of the Mackenzie Valley and in a region contiguous to it, the federal Minister may enter into an agreement or arrangement with an authority responsible for the examination of environmental effects in that region respecting the joint establishment of a committee to conduct the study and the manner in which the study is to be conducted.
Marginal note:Elements to consider
144.5 In conducting its study, the committee shall consider any traditional knowledge and scientific information that is made available to it.
Marginal note:Information
144.6 Subject to any other federal or territorial law, a committee may obtain, from any board established or continued by this Act or from any department or agency of the federal or territorial government, any information in the possession of the board, department or agency that is required for it to conduct its study.
Marginal note:Report to federal Minister
144.7 On completion of its study, the committee established under subsection 144.1(1) or under an agreement or arrangement entered into under section 144.4 shall provide a report to the federal Minister, who shall make it available to the public.
Marginal note:Consideration of report
144.8 The Gwich’in Land Use Planning Board, the Sahtu Land Use Planning Board, the Mackenzie Valley Land and Water Board, the Mackenzie Valley Environmental Impact Review Board, its review panels, a review panel, or a joint panel established jointly by the Mackenzie Valley Environmental Impact Review Board and any other person or body, and any body conducting a preliminary screening of a proposal for a development under section 124 shall consider any report referred to in section 144.7.
Marginal note:Conflict of interest
144.9 (1) A member of a committee shall not participate in a study if that participation would place the member in a material conflict of interest.
Marginal note:Status or entitlements under agreement
(2) A member of a committee is not placed in a material conflict of interest merely because of any status or entitlement conferred on the member under the Gwich’in Agreement, the Sahtu Agreement, the Tlicho Agreement or any other agreement between a first nation and Her Majesty in right of Canada for the settlement of a land claim.
230. Section 149 of the Act is replaced by the following:
Marginal note:Information
149. Subject to any other federal or territorial law, a responsible authority or a person or body that performs an environmental audit may obtain, from any board established by or continued under this Act or from any department or agency of the federal or territorial government, any information in the possession of the board, department or agency that is required for the performance of the functions of the responsible authority or person under this Part.
231. The Act is amended by adding the following after section 150:
PART 6.1ADMINISTRATIVE MONETARY PENALTIES
Interpretation
Marginal note:Definitions
150.01 The following definitions apply in this Part.
“Board”
« Office »
“Board” has the same meaning as in section 51.
“inspector”
« inspecteur »
“inspector” means a person designated as an inspector under section 84 or 142.24.
“penalty”
« pénalité »
“penalty” means an administrative monetary penalty imposed under this Part for a violation.
“review body”
« réviseur »
“review body” means
(a) in respect of a violation relating to Part 3, the Board; and
(b) in respect of a violation relating to Part 5, the federal Minister.
Federal Minister’s Powers
Marginal note:Regulations
150.02 (1) The federal Minister may, with the approval of the Governor in Council, make regulations for the purposes of sections 150.03 to 150.23, including regulations
(a) designating as a violation that may be proceeded with in accordance with this Act
(i) the contravention of any specified provision of this Act or of any of its regulations,
(ii) the contravention of any order, direction or decision — or of any order, direction or decision of any specified class — made or given under this Act, or
(iii) the failure to comply with a term or condition of any licence, permit or other authorization or development certificate issued under this Act or a term or condition of a specified class of licences, permits or other authorizations;
(b) respecting the determination of or the method of determining the amount payable as the penalty, which may be different for individuals and other persons, for each violation;
(c) establishing the form and content of notices of violations;
(d) respecting the service of documents required or authorized under this Act, including the manner and proof of service and the circumstances under which documents are considered to be served;
(e) respecting reviews by the review body in respect of a notice of violation; and
(f) respecting the publication of the nature of a violation, the name of the person who committed it and the amount of the penalty.
Marginal note:Maximum amount of penalty
(2) The amount that may be determined under any regulations made under paragraph (1)(b) as the penalty for each violation shall not be more than $25,000, in the case of an individual, and $100,000 in the case of any other person.
Violations
Marginal note:Who may issue notices
150.03 Inspectors are authorized to issue notices of violation.
Marginal note:Commission of violation
150.04 (1) Every person who contravenes or fails to comply with a provision, order, direction, decision, term or condition designated under paragraph 150.02(1)(a) commits a violation and is liable to a penalty in the amount that is determined in accordance with the regulations.
Marginal note:Purpose of penalty
(2) The purpose of the penalty is to promote compliance with this Act and not to punish.
Marginal note:Liability of directors, officers, etc.
150.05 If a corporation commits a violation, any director, officer or agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to a penalty in the amount that is determined in accordance with the regulations, whether or not the corporation has been proceeded against in accordance with this Act.
Marginal note:Proof of violation
150.06 In any proceedings under this Act against a person in relation to a violation, it is sufficient proof of the violation to establish that it was committed by an employee or agent or mandatary of the person, whether or not the employee or the agent or mandatary is identified or proceeded against in accordance with this Act.
Marginal note:Issuance and service of notice of violation
150.07 (1) If an inspector has reasonable grounds to believe that a person has committed a violation, the inspector may issue a notice of violation and cause it to be served on the person.
Marginal note:Contents
(2) The notice of violation shall
(a) name the person that is believed to have committed the violation;
(b) set out the relevant facts surrounding the violation;
(c) set out the amount of the penalty;
(d) inform the person of their right to request a review with respect to the violation or the amount of the penalty, and of the period within which that right shall be exercised;
(e) inform the person of the time and manner of paying the penalty; and
(f) inform the person that, if they do not pay the penalty or exercise their right referred to in paragraph (d), they are considered to have committed the violation and are liable to the penalty.
Marginal note:Copy of notice of violation
(3) The inspector shall, without delay after issuing the notice of violation, provide a copy to the Board and the federal Minister.
Rules About Violations
Marginal note:Certain defences not available
150.08 (1) A person named in a notice of violation does not have a defence by reason that the person
(a) exercised due diligence to prevent the commission of the violation; or
(b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.
Marginal note:Common law principles
(2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under this Act applies in respect of a violation to the extent that it is not inconsistent with this Act.
Marginal note:Continuing violation
150.09 A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.
Marginal note:Violation or offence
150.1 (1) Proceeding with any act or omission as a violation under this Act precludes proceeding with it as an offence under this Act, and proceeding with it as an offence under this Act precludes proceeding with it as a violation under this Act.
Marginal note:Violations not offences
(2) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.
Marginal note:Limitation period
150.11 No notice of violation is to be issued more than two years after the day on which the federal Minister becomes aware of the acts or omissions that constitute the alleged violation.
Reviews
Marginal note:Right to request review
150.12 A person who is served with a notice of violation may, within 30 days after the notice is served or within any longer period prescribed by the regulations, make a request to the review body for a review of the amount of the penalty or the facts of the violation, or both.
Marginal note:Correction or cancellation of notice of violation
150.13 At any time before a request for a review in respect of a notice of violation is received by the review body, an inspector may cancel the notice of violation or correct an error in it.
Marginal note:Review
150.14 On receipt of a request for a review in respect of a notice of violation, the review body shall conduct the review.
Marginal note:Witnesses
150.15 (1) When conducting a review, the Board may summon any person to appear as a witness and may order the witness to give evidence orally or in writing and produce any documents and things that the Board considers necessary for the purpose of the review.
Marginal note:Enforcement of summonses and orders
(2) Any summons issued or order made under subsection (1) may be made a summons or an order of the Federal Court or of the superior court of a province and is enforceable in the same manner as a summons or an order of that court.
Marginal note:Procedure
(3) To make a summons issued or an order made under subsection (1) a summons or an order of the Federal Court or of the superior court of a province, the usual practice and procedure of the court in such matters may be followed or a certified copy of the summons or order may be filed with the court’s registrar and the summons or order then becomes a summons or an order of that court.
Marginal note:Fees for witnesses
(4) A witness who is served with a summons is entitled to receive the fees and allowances to which persons who are summoned to appear as witnesses before the Federal Court are entitled.
Marginal note:Object of review
150.16 (1) The review body shall determine, as the case may be, whether the amount of the penalty for the violation was determined in accordance with the regulations or whether the person committed the violation, or both.
Marginal note:Determination
(2) The review body shall render a determination in writing and cause the person who requested the review to be served with a copy of the determination, with reasons. A copy of the determination, with reasons, shall also be provided without delay to the federal Minister in the case of a violation relating to Part 3 or to the Board in the case of a violation relating to Part 5.
Marginal note:Correction of penalty
(3) If the review body determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the review body shall correct it.
Marginal note:Responsibility
(4) If the review body determines that the person who requested the review committed the violation, the person who requested the review is liable to the penalty as set out in the determination.
Marginal note:Determination final
(5) A determination made under this section is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.
Marginal note:Burden of proof
150.17 If the facts of a violation are reviewed, the inspector who issued the notice of violation shall establish, on a balance of probabilities, that the person named in it committed the violation identified in it.
Responsibility
Marginal note:Payment
150.18 If a person pays the penalty set out in a notice of violation, the person is considered to have committed the violation and proceedings in respect of it are ended.
Marginal note:Failure to act
150.19 A person that neither pays the penalty within the period set out in the notice of violation — nor requests a review within the period referred to in section 150.12 — is considered to have committed the violation and is liable to the penalty.
Recovery of Penalties
Marginal note:Debt to Her Majesty
150.2 (1) A penalty constitutes a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.
Marginal note:Limitation period or prescription
(2) No proceedings to recover the debt are to be instituted more than five years after the day on which the debt becomes payable.
Marginal note:Certificate
150.21 (1) The federal Minister may issue a certificate of non-payment certifying the unpaid amount of any debt referred to in subsection 150.2(1).
Marginal note:Registration in Federal Court
(2) Registration in other court of competent jurisdiction of a certificate of non-payment has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.
General
Marginal note:Authenticity of documents
150.22 In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 150.07(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.
Marginal note:Publication
150.23 The Board may, subject to any regulations, make public the nature of a violation, the name of the person who committed it and the amount of the penalty.
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