Yukon and Nunavut Regulatory Improvement Act (S.C. 2015, c. 19)
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Assented to 2015-06-18
Yukon and Nunavut Regulatory Improvement Act
S.C. 2015, c. 19
Assented to 2015-06-18
An Act to amend the Yukon Environmental and Socio-economic Assessment Act and the Nunavut Waters and Nunavut Surface Rights Tribunal Act
SUMMARY
Part 1 amends the Yukon Environmental and Socio-economic Assessment Act to provide that the Canadian Environmental Assessment Act, 2012 does not apply in Yukon, to allow for the coordination of reviews of transboundary projects, to establish time limits for environmental assessments and to establish a cost recovery regime. It also amends that Act to provide for binding ministerial policy directions to the Board and the delegation of any of the Minister’s powers, duties and functions to the territorial minister, and allows for a member of the board who is participating in a screening or review to continue to act for that purpose after the expiry of their term or their removal due to a loss of residency in Yukon, until decision documents are issued. In addition, it amends that Act to clarify that a new assessment of a project is not required when an authorization is renewed or amended unless there has been any significant change to the original project.
Part 2 amends the Nunavut Waters and Nunavut Surface Rights Tribunal Act to modify the maximum term of certain licences, to establish time limits with respect to the making of certain decisions, to allow for the making of arrangements relating to security, to establish a cost recovery regime, to modify the offence and penalty regime and to create an administrative monetary penalty scheme.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Marginal note:Short title
1. This Act may be cited as the Yukon and Nunavut Regulatory Improvement Act.
PART 12003, c. 7YUKON ENVIRONMENTAL AND SOCIO-ECONOMIC ASSESSMENT ACT
Amendments to the Act
2. Section 6 of the Yukon Environmental and Socio-economic Assessment Act is replaced by the following:
Marginal note:Non-application
6. The Canadian Environmental Assessment Act, 2012 does not apply in Yukon.
Marginal note:Delegation to territorial Minister
6.1 (1) The federal minister may delegate, in writing, to the territorial minister all or any of the federal minister’s powers, duties or functions under this Act, either generally or as otherwise provided in the instrument of delegation.
Marginal note:Notice
(2) The federal minister must notify the first nations in writing of any such delegation.
3. Subsection 8(3) of the Act is replaced by the following:
Marginal note:Executive committee
(3) One member of the executive committee referred to in paragraph (1)(a) shall be appointed on the nomination of the Council, another on the nomination of the territorial minister and the third, being the Chairperson of the Board, following consultation by the federal minister with the other two members.
4. Section 10 of the Act is amended by adding the following after subsection (3):
Marginal note:Acting after expiry of term
(4) If a member is a member of the executive committee or of a panel of the Board and, while that committee or panel is conducting a screening or review of a project, their term expires before a decision document is issued by each decision body to whom the committee or panel has made a recommendation in respect of that project, they may — in accordance with the by-laws of the Board or, in the absence of an applicable by-law, the direction of the Chairperson — continue to perform their functions in relation to that screening or review until those decision documents are issued. For the purpose of the appointment of a replacement, the member’s office is considered to be vacant as soon as their term expires.
5. Section 11 of the Act is amended by adding the following after subsection (3):
Marginal note:Acting after removal of member
(4) If a member is a member of the executive committee or of a panel of the Board and, while that committee or panel is conducting a screening or review of a project, they are removed from office under subsection (2) before a decision document is issued by each decision body to whom the committee or panel has made a recommendation in respect of that project, they may — in accordance with the by-laws of the Board or, in the absence of an applicable by-law, the direction of the Chairperson — continue to perform their functions in relation to that screening or review until those decision documents are issued. For the purpose of the appointment of a replacement, the member’s office is considered to be vacant as soon as they are removed from office.
6. Paragraph 30(1)(d) of the Act is replaced by the following:
(d) the periods, for each step from the submission or referral of a proposal to the conclusion of the screening or review of the project or existing project, within which the executive committee and panels of the Board must perform their functions.
7. Paragraph 31(2)(f) of the Act is replaced by the following:
(f) the periods, for each step from the submission of a proposal to the conclusion of the evaluation of the project or existing project, within which designated offices must perform their functions.
8. Section 35 of the Act is amended by striking out “and” at the end of paragraph (a), by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b):
(c) respecting the performance of a member’s functions for the purposes of subsections 10(4) and 11(4).
9. (1) Paragraph 42(1)(d) of the Act is replaced by the following:
(d) the significance of any adverse cumulative environmental or socio-economic effects that have occurred or might occur in connection with the project or existing project in combination with the effects of other projects for which proposals have been submitted under subsection 50(1) or any activities that have been carried out, are being carried out or are likely to be carried out in or outside Yukon;
(d.1) any studies or research undertaken under subsection 112(1) that are relevant to the project or existing project;
(d.2) the need for effects monitoring;
(2) Subsection 42(1) of the Act is amended by adding the following after paragraph (g):
(g.1) the interests of first nations;
(3) Subsection 42(2) of the Act is replaced by the following:
Marginal note:Additional matters to be considered
(2) In addition to the matters referred to in subsection (1), the executive committee or a panel of the Board shall take into consideration the capacity of any renewable resources that are likely to be significantly affected by the project or existing project to meet present and future needs.
Marginal note:Potential activities of third parties
(2.1) If the proponent is a government agency or first nation and the project or existing project concerns planning activities related to timber harvesting, the designated office, executive committee or panel of the Board shall take into consideration any potential activities of third parties that, if proposed to be undertaken, would be subject to an assessment under section 47 or 48.
10. Section 43 of the Act is renumbered as subsection 43(1) and is amended by adding the following:
Marginal note:Suspension
(2) If the proponent fails to provide the required supplementary information within the period prescribed by the rules, the designated office, executive committee or panel of the Board may suspend its assessment activities until the proponent provides that information and it must make the reasons for the suspension public if it does so.
Marginal note:Termination of assessment
(3) If a proponent does not provide the required supplementary information within two years after the day on which the request is made, the assessment of the project is discontinued, unless the Board grants an extension of that period.
Marginal note:Extension of time limit
(4) The Board may extend the period referred to in subsection (3) by a maximum of one year.
Marginal note:Interpretation
(5) For greater certainty, the proponent may submit a new proposal in relation to the project in accordance with section 50.
Marginal note:Consideration of previous assessments
(6) In conducting an assessment of the project to which the new proposal relates, a designated office, the executive committee or a panel of the Board must consider, and may rely on, any assessment activities previously carried out under this Act in respect of the project.
11. The Act is amended by adding the following after section 46:
Time Limits
Marginal note:Authority and validity
46.1 The failure of the federal minister, the Minister of the Environment, the territorial minister, the Board, a decision body, a designated office, the executive committee, a panel of the Board or a joint panel to exercise a power or perform a duty or function within a period provided for under this Act does not terminate their authority to do so nor does it invalidate any document prepared or submitted or any decision or action taken in the exercise or performance of their powers, duties or functions.
12. Paragraph 47(2)(a) of the Act is replaced by the following:
(a) a federal agency or federal independent regulatory agency is the proponent;
13. Paragraphs 48(1)(a) and (b) of the Act are replaced by the following:
(a) a federal agency that is the proponent of the activity or that has the power to issue an authorization or to grant an interest in land required for the activity to be undertaken;
(b) the federal minister, if the Governor in Council has the power to issue an authorization required for the activity to be undertaken or if a federal independent regulatory agency is the proponent of the activity or has the power to issue an authorization or to grant an interest in land required for the activity to be undertaken;
14. The Act is amended by adding the following after section 49:
Marginal note:No significant change
49.1 (1) A new assessment of a project or existing project is not required when an authorization is renewed or amended unless, in the opinion of a decision body for the project, there is a significant change to the original project that would otherwise be subject to an assessment.
Marginal note:Consultation between decision bodies
(2) If there is more than one decision body for the project, they shall consult one another in determining whether a new assessment is required.
15. Subsection 50(2) of the Act is replaced by the following:
Marginal note:Considerations by proponent
(2) The proponent of a project shall, in preparing a proposal, incorporate any appropriate mitigative measures and take into consideration the matters referred to in paragraphs 42(1)(b), (c), (e) and (f) and, if applicable, subsection 42(2.1), in the case of a proposal submitted to a designated office, or the matters referred to in those paragraphs, paragraphs 42(1)(g) to (h) and, if applicable, subsection 42(2.1), in the case of a proposal submitted to the executive committee.
16. Subsection 56(1) of the Act is replaced by the following:
Marginal note:Conclusion of evaluation
56. (1) A designated office shall, within nine months after the day on which a proposal is submitted to it under paragraph 50(1)(b), conclude its evaluation of the project by
(a) recommending to the decision bodies for the project that the project be allowed to proceed, if it determines that the project will not have significant adverse environmental or socio-economic effects in or outside Yukon;
(b) recommending to those decision bodies that the project be allowed to proceed, subject to specified terms and conditions, if it determines that the project will have, or is likely to have, significant adverse environmental or socio-economic effects in or outside Yukon that can be mitigated by those terms and conditions;
(c) recommending to those decision bodies that the project not be allowed to proceed, if it determines that the project will have, or is likely to have, significant adverse environmental or socio-economic effects in or outside Yukon that cannot be mitigated; or
(d) referring the project to the executive committee for a screening, if, after taking into account any mitigative measures included in the project proposal, it cannot determine whether the project will have, or is likely to have, significant adverse environmental or socio-economic effects.
Marginal note:Excluded period
(1.1) If the designated office requires the proponent of the project to provide or collect information or to undertake a study, the period that, in the designated office’s opinion, is taken by the proponent to comply with the requirement is not included in the calculation of the time limit under subsection (1) or of its extension.
Marginal note:Extension of time limit by federal minister
(1.2) The federal minister may, at the request of the Board, extend the time limit referred to in subsection (1) by a maximum of two months to take into account circumstances that are specific to the proposal for a project.
Marginal note:Extension of time limit by Governor in Council
(1.3) The Governor in Council may, by order, on the recommendation of the federal minister, further extend the time limit any number of times by periods of any length.
17. Subsection 58(1) of the Act is replaced by the following:
Marginal note:Conclusion of screening
58. (1) The executive committee shall, within 16 months after the day on which a proposal is submitted to it under paragraph 50(1)(a) or referred to it under paragraph 56(1)(d), conclude its screening of the project by
(a) recommending to the decision bodies for the project that the project be allowed to proceed without a review, if it determines that the project will not have significant adverse environmental or socio-economic effects in or outside Yukon;
(b) recommending to those decision bodies that the project be allowed to proceed without a review, subject to specified terms and conditions, if it determines that the project will have, or is likely to have, significant adverse environmental or socio-economic effects in or outside Yukon that can be mitigated by those terms and conditions;
(c) recommending to those decision bodies that the project not be allowed to proceed and not be subject to a review, if it determines that the project will have, or is likely to have, significant adverse environmental or socio-economic effects in or outside Yukon that cannot be mitigated; or
(d) requiring a review of the project, if, after taking into account any mitigative measures included in the project proposal, it cannot determine whether the project will have, or is likely to have, significant adverse environmental or socio-economic effects.
Marginal note:Excluded period
(1.1) If the executive committee requires the proponent of the project to provide or collect information or to undertake a study, the period that, in the executive committee’s opinion, is taken by the proponent to comply with the requirement is not included in the calculation of the time limit under subsection (1) or of its extension.
Marginal note:Extension of time limit by federal minister
(1.2) The federal minister may, at the request of the Board, extend the time limit referred to in subsection (1) by a maximum of two months to take into account circumstances that are specific to the proposal for a project.
Marginal note:Extension of time limit by Governor in Council
(1.3) The Governor in Council may, by order, on the recommendation of the federal minister, further extend the time limit any number of times by periods of any length.
18. Section 59 of the Act is replaced by the following:
Marginal note:Recommendation for non-referral rejected
59. If the executive committee recommends that a project not be referred for a review, but that recommendation is rejected by a decision body for the project and the decision body so notifies the executive committee in writing within 15 days after receiving the recommendation, the executive committee shall require a review of the project.
19. Sections 61 to 64 of the Act are replaced by the following:
Marginal note:Requirement or request for review
61. (1) When the executive committee, under paragraph 58(1)(d), subsection 58(2) or section 59, requires a review of a project for which there is a federal decision body, or when a public review of such a project is requested under section 60, the executive committee shall
(a) notify the Minister of the Environment of its intention to establish a panel of the Board; or
(b) request that Minister to enter into negotiations for the establishment of a joint panel in accordance with section 67.
Marginal note:Consideration of effects outside Yukon
(2) When the executive committee, under paragraph 58(1)(d), subsection 58(2) or section 59, requires a review of a project for which there is no federal decision body, or when a public review of such a project is requested under section 60, the executive committee shall
(a) if it determines that the project might have significant adverse environmental or socio-economic effects outside Yukon, make a request under paragraph (1)(b); or
(b) if it determines that the project will not have such effects, so notify the Minister of the Environment.
Marginal note:Response by Minister of the Environment
(3) The Minister of the Environment may, within 30 days after receiving a notification under paragraph (1)(a), direct the executive committee not to establish a panel of the Board, in which case the executive committee shall make a request under paragraph (1)(b).
Marginal note:Determination by Minister of the Environment
(4) After receiving a notification of the executive committee’s determination under paragraph (2)(b), the Minister of the Environment may consider and determine the same question and, if that Minister advises the executive committee of a contrary determination within 30 days after the notification, the executive committee shall make a request under paragraph (1)(b).
Marginal note:Response to request
62. The Minister of the Environment shall, within 30 days after receiving a request made under paragraph 61(1)(b), notify the executive committee whether he or she agrees to the request.
20. (1) Subsection 65(1) of the Act is amended by adding “or” at the end of paragraph (a) and by replacing paragraphs (b) and (c) with the following:
(b) the Minister of the Environment does not direct the executive committee as provided in subsection 61(3), does not advise the executive committee as provided in subsection 61(4) or does not agree to a request as provided in section 62.
(2) Subsection 65(2) of the Act is replaced by the following:
Marginal note:Failure to enter into agreement
(2) The executive committee shall establish a panel of the Board to conduct a review of a project if, despite negotiations entered into under paragraph 61(1)(b) for the establishment of a joint panel, no agreement is concluded under section 67.
21. The Act is amended by adding the following after section 66:
Marginal note:Time limit
66.1 (1) The executive committee shall establish a panel of the Board, and fix its terms of reference, within three months after the day on which it is required to do so under subsection 65(1) or (2).
Marginal note:Excluded period
(2) If the executive committee requires the proponent of the project to provide or collect information or to undertake a study, the period that, in the committee’s opinion, is taken by that proponent to comply with the requirement is not included in the calculation of the time limit under subsection (1) or of its extension.
Marginal note:Extension of time limit by federal minister
(3) The federal minister may, at the request of the executive committee, extend the time limit referred to in subsection (1) by a maximum of two months to take into account circumstances that are specific to the proposal for a project.
Marginal note:Extension of time limit by Governor in Council
(4) The Governor in Council may, by order, on the recommendation of the federal minister, further extend the time limit any number of times by periods of any length.
Marginal note:Agreement — coordination
66.2 (1) The executive committee may, with the approval of the federal minister, enter into an agreement with any authority that has powers, duties or functions in relation to reviewing the effects of that portion of the project that is to be carried out outside Yukon for the purpose of coordinating their reviews.
Marginal note:Government of foreign state
(2) The federal minister and the Minister of Foreign Affairs may, after consultation with the executive committee, enter into an agreement referred to in subsection (1) if the authority is a government of a foreign state or of a subdivision of a foreign state, or any institution of such a government.
Marginal note:For greater certainty
(3) For greater certainty, the fact that a panel of the board is coordinating its review with another authority does not permit the panel to make a recommendation concerning the portion of the project to be carried out outside Yukon.
22. (1) Subsection 67(1) of the Act is replaced by the following:
Marginal note:Conclusion of agreement with Minister of Environment
67. (1) If the Minister of the Environment agrees to a request made by the executive committee under paragraph 61(1)(b), the executive committee may, with the approval of the federal minister, enter into an agreement with the Minister of the Environment for the establishment of a joint panel to conduct a review of the project.
(2) The portion of subsection 67(2) of the English version of the Act before paragraph (a) is replaced by the following:
Marginal note:Joint panel agreement
(2) In circumstances referred to in subsection 65(1), the executive committee may, with the approval of the federal minister, enter into an agreement for the purpose referred to in subsection (1) with
23. (1) Paragraphs 72(4)(b) and (c) of the Act are replaced by the following:
(b) the project be allowed to proceed, subject to specified terms and conditions, if it determines that the project will have, or is likely to have, significant adverse environmental or socio-economic effects in or outside Yukon that can be mitigated by those terms and conditions; or
(c) the project not be allowed to proceed, if it determines that the project will have, or is likely to have, significant adverse environmental or socio-economic effects in or outside Yukon that cannot be mitigated.
(2) Section 72 of the Act is amended by adding the following after subsection (4):
Marginal note:Time limit — panel of the Board
(4.1) A panel of the Board shall make the recommendations referred to in subsection (4) within 15 months after the day on which the panel is established under subsection 65(1) or (2).
Marginal note:Excluded period
(4.2) If a panel of the Board requires the proponent of the project to provide or collect information or to undertake a study, the period that, in the panel’s opinion, is taken by the proponent to comply with the requirement is not included in the calculation of the time limit under subsection (4.1) or of its extension.
Marginal note:Extension of time limit by federal minister
(4.3) The federal minister may, at the request of the Board, extend the time limit referred to in subsection (4.1) by a maximum of two months to take into account circumstances that are specific to a proposal for a project.
Marginal note:Extension of time limit by Governor in Council
(4.4) The Governor in Council may, by order, on the recommendation of the federal minister, further extend the time limit any number of times by periods of any length.
24. Section 73 of the Act is repealed.
25. Section 75 of the Act is replaced by the following:
Marginal note:Decision on recommendation from designated office or joint panel
75. If a designated office or a joint panel makes a recommendation to a decision body, the decision body shall issue a decision document within the period prescribed by the regulations accepting, rejecting or varying the recommendation.
26. The portion of subsection 76(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Decision on recommendation from executive committee or panel of Board
76. (1) Subject to section 59, if the executive committee or a panel of the Board makes a recommendation to a decision body, the decision body shall, within the period prescribed by the regulations,
27. Subsection 77(2) of the Act is replaced by the following:
Marginal note:Time limits
(2) The executive committee or panel of the Board shall make a new recommendation to the decision bodies in respect of the project within the period prescribed by the rules, which is not to exceed 60 days for a screening by the executive committee or 90 days for a review by a panel of the Board. If it does not make such a recommendation, it is deemed to have made the same recommendation that it made at the conclusion of its screening or review.
28. (1) Paragraphs 81(1)(d) and (e) of the Act are replaced by the following:
(d) the executive committee, if the recommendation to the decision body was made by the executive committee, a panel of the Board or a joint panel;
(2) Subsection 81(2) of the English version of the Act is replaced by the following:
Marginal note:Decision not in conformity with land use plan
(2) If a decision document allows a project to be undertaken not in conformity with a regional land use plan referred to in section 44, the decision body shall provide a copy of the decision document to the planning commission and to any person or body that approved the plan.
29. The Act is amended by adding the following after section 88:
Marginal note:For greater certainty
88.1 For greater certainty, an independent regulatory agency, a government agency or a first nation may impose, to the extent of its jurisdiction and authority to do so, terms and conditions that are in addition to, or more stringent than, those referred to in the decision documents.
30. The Act is amended by adding the following after section 93:
Cost Recovery
Marginal note:Proponent’s obligation to pay costs
93.1 (1) In order for the federal minister to recover costs that are incurred in the course of a review of a project, the proponent of the project must pay to the federal minister
(a) any amounts that are prescribed by the regulations and that are related to the exercise of the powers and performance of the functions of the Board or its members or of members of a panel of the Board or a joint panel;
(b) any costs incurred by the Board for services that are prescribed by the regulations and that are provided to it by a third party; and
(c) any amounts that are prescribed by the regulations and that are related to the exercise of the powers and performance of the duties and functions of the federal minister.
Marginal note:Limited period
(2) For the purposes of subsection (1), the services, powers, duties or functions described in that subsection are limited to those provided, exercised or performed during the period that begins when the executive committee is required to establish a panel of the Board under subsection 65(1) or (2) and ends when a decision document is issued by each of the decision bodies to whom the panel of the Board or joint panel, as the case may be, made a recommendation in respect of the project.
Marginal note:Debt due to Her Majesty
(3) The amounts and costs that the proponent must pay under subsection (1) constitute a debt due to Her Majesty in right of Canada and may be recovered as such in any court of competent jurisdiction.
31. (1) Section 112 of the Act is amended by adding the following after subsection (1):
Marginal note:Collaboration
(1.1) With the approval of the ministers and first nations that request or consent to a study or research under subsection (1), the executive committee may conduct the study or research in collaboration with any other body.
(2) Section 112 of the Act is amended by adding the following after subsection (2):
Marginal note:Obtaining information
(3) Subject to any other Act of Parliament, territorial law or first nation law, the executive committee may obtain from any first nation, government agency or independent regulatory agency any information in their possession that the executive committee requires for the purpose of conducting a study or research.
32. Subsection 113(1) of the Act is replaced by the following:
Marginal note:Report of executive committee
113. (1) The executive committee shall submit a report on the results of a study or of research undertaken under section 112 to the minister or first nation that requested or consented to it and shall, as soon as feasible after submitting the report, make it available to the public. The executive committee may include recommendations in the report.
33. Paragraph 118(c) of the English version of the Act is replaced by the following:
(c) a record of authorizations, grants of interest in land and provisions of financial assistance in respect of which the Board has been notified under section 89.
34. The Act is amended by adding the following after section 121:
Policy Directions
Marginal note:Minister’s policy directions
121.1 (1) The federal minister may, after consultation with the Board, give written policy directions that are binding on the Board with respect to the exercise or performance of any of its powers, duties or functions under this Act.
Marginal note:Limitation
(2) Policy directions do not apply in respect of any proposal for a project that, at the time the directions are given, has been submitted to a designated office, the executive committee or a panel of the Board.
Marginal note:Publication
(3) Immediately after giving a policy direction to the Board, the federal minister shall cause a notice to be published in the Canada Gazette stating that the direction will be published by the Board on its Internet site. Immediately after receiving the direction, the Board shall publish them on its Internet site and may also make it accessible by any other means that the Board considers appropriate.
Marginal note:Statutory Instruments Act
(4) Sections 3, 5 and 11 of the Statutory Instruments Act do not apply in respect of the policy directions.
35. Paragraph 122(d) of the Act is replaced by the following:
(d) prescribing periods for the purposes of section 75 or subsection 76(1) or 77(3);
36. The Act is amended by adding the following after section 122:
Marginal note:Power of Governor in Council
122.1 The Governor in Council may, following consultation by the federal minister with the territorial minister, first nations, the Council and the Board, make regulations respecting the recovery of costs for the purposes of section 93.1, including prescribing amounts and services for that section and exempting any class of proponents or class of projects from the application of that section.
37. Paragraphs 123(a) and (b) of the French version of the Act are replaced by the following:
a) ajouter à la partie 1 de l’annexe le nom de tout organisme chargé, aux termes d’un texte législatif fédéral autre que la Loi sur le Yukon, de délivrer des autorisations dont les conditions ne sont pas susceptibles d’être modifiées par le gouverneur en conseil ou un ministre du gouvernement fédéral;
b) ajouter à la partie 2 de l’annexe le nom de tout organisme chargé, sous le régime de la Loi sur le Yukon, de délivrer des autorisations dont les conditions ne sont pas susceptibles d’être modifiées par le commissaire du Yukon ou un ministre du gouvernement territorial;
38. Part 1 of the schedule to the Act is amended by adding the following in alphabetical order:
Canadian Nuclear Safety Commission
Commission canadienne de sûreté nucléaire
Transitional Provisions
Marginal note:Ongoing projects
39. (1) Subject to subsection (2), the Yukon Environmental and Socio-economic Assessment Act, as it read immediately before the day on which this Act receives royal assent, continues to apply to a proposal for a project that was submitted before that day.
Marginal note:Time limits
(2) Section 46.1 and subsections 56(1) to (1.3), 58(1) to (1.3) and 72(4.1) to (4.4) of the Yukon Environmental and Socio-economic Assessment Act, as they read on the day on which this Act receives royal assent, apply to any project in respect of which the evaluation, screening or review has begun before that day but no decision has yet been made, and the time limits, including any extensions, that are referred to in those subsections are counted from that day.
Marginal note:Northern Pipeline
40. The Yukon Environmental and Socio-economic Assessment Act, as it read immediately before the day on which this Act receives royal assent, continues to apply to the pipeline that is referred to in the Northern Pipeline Act.
PART 22002, c. 10NUNAVUT WATERS AND NUNAVUT SURFACE RIGHTS TRIBUNAL ACT
Amendments to the Act
41. (1) The definition “waters” in section 4 of the Nunavut Waters and Nunavut Surface Rights Tribunal Act is replaced by the following:
“waters”
« eaux »
“waters” means inland waters, whether in a liquid or solid state, on or below the surface of land.
(2) The definition zones marines in section 4 of the French version of the Act is replaced by the following:
« zones marines »
“marine area”
zones marines S’entend des eaux, recouvertes de glace ou non, de la région du Nunavut — à l’exclusion des eaux internes —, ainsi que de leur fond et de leur sous-sol.
(3) Section 4 of the Act is amended by adding the following in alphabetical order:
“penalty”
« pénalité »
“penalty” means an administrative monetary penalty imposed for a violation.
42. The Act is amended by adding the following after section 43:
Marginal note:Notice — on Board’s initiative
43.1 (1) The Board shall give notice of its intention to consider, on its own initiative, the amendment of a condition of a licence under subparagraph 43(1)(b)(ii) or (iii) or the cancellation of a licence under subparagraph 43(1)(c)(ii) or (iii), by publishing a notice on its Internet site, in the public registry, in the Canada Gazette or in a newspaper or other periodical that, in its opinion, has a large circulation in Nunavut.
Marginal note:Exception
(2) Subsection (1) does not apply if the Board, with the consent of the Minister, declares the amendment or the cancellation to be required on an emergency basis.
43. Section 45 of the Act is replaced by the following:
Marginal note:Term of licence
45. The term of a licence or any renewal shall not exceed
(a) 25 years, in the case of a type A licence respecting a class of appurtenant undertakings that is prescribed by the regulations or in the case of a type B licence; or
(b) the anticipated duration of the appurtenant undertaking, in the case of a type A licence other than one described in paragraph (a).
44. The Act is amended by adding the following after section 55:
Time Limits
Authority to Act
Marginal note:Authority and validity
55.1 The failure of the Minister or the Board to exercise a power or perform a duty or function within a period provided for under this Part does not terminate their authority to do so nor does it invalidate any document prepared or submitted or any decision or action taken in the exercise or performance of their powers, duties or functions.
Decisions by Board and Approvals
Marginal note:Type A licence and type B licence if public hearing held
55.2 In the case of an application for the issuance, renewal or amendment of a type A licence, or a type B licence in connection with which a public hearing is held, or in the case where the Board intends to consider, on its own initiative, the amendment of such a licence, the Board, subject to section 55.31, shall make a decision within a period of nine months after the day on which the application is made or on which notice of the Board’s intention is published under subsection 43.1(1).
Marginal note:Day on which application is made
55.3 An application is considered to be made on the day on which the Board is satisfied that the application meets all the requirements under subsections 48(1) and (2).
Calculation of Time Limit
Marginal note:Commencement of time limit
55.31 If the Board is cooperating and coordinating with the Nunavut Planning Commission under subsection 36(2) or with the Nunavut Impact Review Board or a federal environmental assessment panel under subsection 37(1), the time limit referred to in section 55.2 does not begin to run until the Nunavut Planning Commission, Nunavut Impact Review Board or federal environmental assessment panel, as the case may be, has completed its screening or review of the project.
Marginal note:Excluded period — information or studies required
55.4 If the Board requires an applicant or a licensee to provide information or studies, the period that, in the Board’s opinion, is taken by the applicant or licensee to comply with that requirement is not included in the calculation of the time limit under section 55.2 or its extension.
Marginal note:Suspension of time limit
55.5 The Board may suspend the time limit referred to in section 55.2 or its extension
(a) if the Board ceases to process or rejects an application under section 38 or 39, until it resumes processing the application;
(b) if the Board determines that an applicant is required to pay the compensation referred to in paragraph 58(b) or to enter into a compensation agreement referred to in paragraph 58(c), until the requirements of paragraph 58(b) or (c), as the case may be, are met;
(c) if the Board determines that an applicant is required to pay the compensation referred to in paragraph 60(1)(a) or to enter into a compensation agreement referred to in paragraph 60(1)(b), until the requirements of paragraph 60(1)(a) or (b), as the case may be, are met;
(d) if the Board determines that an applicant is required to enter into a compensation agreement referred to in paragraph 63(1)(a) or to pay the compensation referred to in paragraph 63(1)(b), until the requirements of paragraph 63(1)(a) or (b), as the case may be, are met; or
(e) if the Board receives notice under subsection 78(1) or 79.2(1) of the Mackenzie Valley Resource Management Act, until the requirements of subsection 78(3) or 79.2(3) of that Act, as the case may be, have been met.
Extensions
Marginal note:Extension of time limit by Minister
55.6 (1) The Minister may, at the request of the Board, extend the time limit referred to in section 55.2 by a maximum of two months to take into account circumstances that are specific to the issuance, renewal or amendment of the licence.
Marginal note:Extension of time limit by Governor in Council
(2) The Governor in Council may, by order, on the recommendation of the Minister, further extend the time limit any number of times by periods of any length.
45. (1) Subsection 56(1) of the Act is replaced by the following:
Marginal note:Referral to Minister for approval
56. (1) The Board’s decision with respect to the issuance, amendment, renewal or cancellation of a type A licence or, if a public hearing is held, a type B licence is to be immediately referred to the Minister for approval.
(2) Subsection 56(2.1) of the French version of the Act is replaced by the following:
Marginal note:Prolongation du délai
(2.1) Le ministre peut prolonger de quarante-cinq jours le délai prévu au paragraphe (2), s’il avise l’Office de ce fait avant l’expiration de ce délai.
46. The Act is amended by adding the following after section 76:
Marginal note:Arrangements relating to security
76.1 (1) If a licence is in respect of an appurtenant undertaking that is situated, partially or wholly, on Inuit-owned land, the Minister may enter into a written arrangement with the designated Inuit organization and the applicant, licensee or prospective assignee of the license that provides for
(a) the amount of security to be furnished and maintained by the applicant, licensee or prospective assignee, as well as the form and nature and any conditions of the security, for the purpose mentioned in paragraph 76(2)(b) or for the purpose of reimbursing the designated Inuit organization for the costs specified in the arrangement; and
(b) the periodic review of the security, including by taking into account any material changes to the undertaking or the risk of environmental damage, and the adjustment of the amount of the security as a result of the review.
Marginal note:Copy of arrangement to be provided to Board
(2) The Minister shall, as soon as possible after entering into the written arrangement described in subsection (1), provide a copy of it to the Board.
Marginal note:Arrangement to be taken into account under subsection 76(1)
(3) The Board shall take into account the written arrangement when it determines the amount of the security required to be furnished and maintained by the applicant, licensee or prospective assignee under subsection 76(1).
47. The Act is amended by adding the following after section 81:
Cost Recovery
Marginal note:Obligation to pay costs
81.1 (1) For the Minister to recover costs that are incurred in relation to the consideration of an application for a licence or for the renewal, amendment or cancellation of a licence, the applicant or a licensee shall pay to the Minister
(a) any amounts that are prescribed by the regulations and that are related to the exercise of the powers and performance of the duties and functions of the Board or of its members;
(b) any costs incurred by the Board for services that are prescribed by the regulations and that are provided to it by a third party; and
(c) any amounts that are prescribed by the regulations and that are related to the exercise of the powers and performance of the duties and functions of the Minister.
Marginal note:Debt due to Her Majesty
(2) The amounts and costs that the applicant or a licensee must pay under subsection (1) constitute a debt due to Her Majesty in right of Canada and may be recovered as such in any court of competent jurisdiction.
48. (1) Subsection 82(1) of the Act is amended by adding the following after paragraph (h):
(h.1) prescribing classes of appurtenant undertakings for the purposes of a type A licence described in paragraph 45(a);
(2) Subsection 82(1) of the Act is amended by adding the following after paragraph (r):
(r.1) respecting the recovery of amounts and costs for the purposes of section 81.1, including prescribing amounts and services for the purposes of that section and exempting any class of applicants or licensees from the application of that section;
49. Section 90 of the Act is replaced by the following:
Marginal note:Principal offences
90. (1) Every person is guilty of an offence who contravenes subsection 11(1), section 12 or section 88 or who fails to comply with subsection 11(3) or with a direction given by an inspector under subsection 87(1).
Marginal note:Punishment
(2) Every person who commits an offence under subsection (1) 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:Offences — type A licences
90.1 (1) Every type A licensee is guilty of an offence who
(a) contravenes any condition of the licence, if the contravention does not constitute an offence under section 91; or
(b) fails, without reasonable excuse, to furnish or maintain security as required under subsection 76(1).
Marginal note:Punishment
(2) Every licensee who commits an offence under subsection (1) 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:Offences — type B licences
90.2 (1) Every type B licensee is guilty of an offence who
(a) contravenes any condition of the licence, if the contravention does not constitute an offence under section 91; or
(b) fails, without reasonable excuse, to furnish or maintain security as required under subsection 76(1).
Marginal note:Punishment
(2) Every licensee who commits an offence under subsection (1) is liable on summary conviction
(a) for a first offence, to a fine not exceeding $37,500 or to imprisonment for a term not exceeding six months, or to both; and
(b) for a second or subsequent offence, to a fine not exceeding $75,000 or to imprisonment for a term not exceeding six months, or to both.
Marginal note:Continuing offences
90.3 An offence under subsection 90(1), 90.1(1) or 90.2(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:Deeming — second or subsequent offence
90.4 (1) For the purposes of paragraphs 90(2)(b), 90.1(2)(b) and 90.2(2)(b), a conviction for a particular offence under this Part is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the offender has been previously convicted of a substantially similar offence under an Act of Parliament — or an Act of the legislature of a province — that relates to environmental or wildlife conservation or protection.
Marginal note:Application
(2) Subsection (1) applies only to previous convictions on indictment, to previous convictions on summary conviction and to previous convictions under any similar procedure under any Act of the legislature of a province.
50. Paragraph 91(a) of the Act is replaced by the following:
(a) contravenes subsection 86(4) or any regulations made under paragraph 82(1)(o), (p) or (q); or
51. Section 92 of the Act is replaced by the following:
Marginal note:Limitation period or prescription
92. No proceedings in respect of an offence under this Part are to be instituted more than five years after the day on which the Minister becomes aware of the acts or omissions that constitute the alleged offence.
52. Subsection 93(1) of the Act is replaced by the following:
Marginal note:Action to enjoin not prejudiced by prosecution
93. (1) Despite the fact that a prosecution has been instituted in respect of an offence under subsection 90(1), 90.1(1) or 90.2(1), the Attorney General of Canada may commence and maintain proceedings to enjoin conduct that constitutes an offence under any of those subsections.
53. The Act is amended by adding the following after section 94:
Administrative Monetary Penalties
Regulations
Marginal note:Ministerial regulations
94.01 (1) The Minister may, with the approval of the Governor in Council, make regulations for the purposes of sections 94.02 to 94.3, including regulations
(a) designating as a violation that may be proceeded with in accordance with this Part
(i) the contravention of any specified provision of this Part or of the regulations,
(ii) the contravention of any order, direction or decision — or of any order, direction or decision of a specified class — made or given under this Part, or
(iii) the failure to comply with a term or condition of any licence or a term or condition of a specified class of licences;
(b) providing for 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 Part, including the manner and proof of service and the circumstances under which documents are considered to be served; and
(e) respecting reviews by the Minister in respect of a notice of violation.
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 must 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:Function of inspectors
94.02 Persons who are designated as inspectors under subsection 85(1) are authorized to issue notices of violation.
Marginal note:Commission of violation
94.03 (1) Every person who contravenes or fails to comply with a provision, order, direction, decision, term or condition designated under paragraph 94.01(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 Part and not to punish.
Marginal note:Liability of directors, officers, etc.
94.04 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 Part.
Marginal note:Proof of violation
94.05 In any proceedings under this Part 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 agent or mandatary is identified or proceeded against in accordance with this Part.
Marginal note:Issuance and service of notice of violation
94.06 (1) If an inspector believes on reasonable grounds 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 must
(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 must 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.
Rules about Violations
Marginal note:Certain defences not available
94.07 (1) A person named in a notice of violation does not have a defence by reason that they
(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 them.
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 Part applies in respect of a violation to the extent that it is not inconsistent with this Part.
Marginal note:Continuing violation
94.08 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:Violations or offences
94.09 (1) Proceeding with any act or omission as a violation under this Part precludes proceeding with it as an offence under this Part, and proceeding with it as an offence under this Part precludes proceeding with it as a violation under this Part.
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 or prescription
94.1 No notice of violation is to be issued more than two years after the day on which the Minister becomes aware of the acts or omissions that constitute the alleged violation.
Reviews
Marginal note:Right to request review
94.11 A person who is served with a notice of violation may — within 30 days after the day on which it is served or within any longer period that is prescribed by the regulations — make a request to the Minister 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
94.12 At any time before a request for a review in respect of a notice of violation is received by the Minister, an inspector may cancel the notice of violation or correct an error in it.
Marginal note:Review
94.13 On receipt of a request for a review in respect of a notice of violation, the Minister shall conduct the review.
Marginal note:Object of review
94.14 (1) The Minister shall determine, as the case may be, whether the amount of the penalty was determined in accordance with the regulations or whether the person committed the violation, or both.
Marginal note:Determination
(2) The Minister shall render a written determination, with reasons, and cause the person who requested the review to be served with a copy. A copy shall also be provided without delay to the Board.
Marginal note:Correction of penalty
(3) If the Minister determines that the amount of the penalty was not determined in accordance with the regulations, the Minister shall correct it.
Marginal note:Responsibility to pay penalty
(4) If the Minister determines that the person who requested the review committed the violation, that person 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
94.15 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
94.16 If a person pays the penalty, the person is considered to have committed the violation and proceedings in respect of it are ended. The Minister shall immediately notify the Board of the violation.
Marginal note:Failure to act
94.17 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 94.11 is considered to have committed the violation and is liable to the penalty. The Minister shall immediately notify the Board of the violation.
Recovery of Penalties
Marginal note:Debts to Her Majesty
94.18 (1) A penalty constitutes a debt due to Her Majesty in right of Canada and may be recovered as such 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
94.19 (1) The Minister may issue a certificate of non-payment certifying the unpaid amount of any debt referred to in subsection 94.18(1).
Marginal note:Registration of certificate
(2) Registration of a certificate of non-payment in any court of competent jurisdiction 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
94.2 In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 94.06(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.
Marginal note:Publication
94.3 The Board shall make public the nature of a violation, the name of the person who committed it and the amount of the penalty.
Transitional Provision
Marginal note:Time limits
54. With respect to an application for the issuance, renewal or amendment of a licence that was submitted before the day on which section 44 comes into force, the time limits referred to in section 55.2 of the Nunavut Waters and Nunavut Surface Rights Tribunal Act begin to run from the day of that coming into force.
Coordinating Amendment
Marginal note:2013, c. 14
55. On the first day on which both section 7 of the Northern Jobs and Growth Act and section 44 of this Act are in force, section 55.31 of the Nunavut Waters and Nunavut Surface Rights Tribunal Act is replaced by the following:
Marginal note:Commencement of time limit
55.31 If the Board is cooperating and coordinating with the Nunavut Planning Commission under subsection 36(2) or with the Nunavut Impact Review Board, a federal environmental assessment panel or a joint panel under subsection 37(1), the time limit referred to in section 55.2 does not begin to run until the Nunavut Planning Commission, Nunavut Impact Review Board, federal environmental assessment panel or joint panel, as the case may be, has completed its screening or review of the project.
Coming into Force
Marginal note:One year after royal assent or by order
56. Sections 42 to 45, 47 and 48 come into force on the day that is one year after the day on which this Act is assented to or on any earlier day or days to be fixed by order of the Governor in Council.
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