Bill C-88: A Return to Status Quo for the Northwest Territories’ Regulatory Regime

In November 2018, federal Bill C-88, (the “Bill”) was introduced in the House of Commons by the Liberal federal government. If passed, the Bill will repeal controversial amendments that were planned for the Mackenzie Valley Resource Management Act, SC 1998, c 25 (“MVRMA”). Essentially, the Bill is intended to reverse previously proposed structural changes to the Land and Water Boards of the Mackenzie Valley. If the Bill is passed it will introduce new regulatory provisions, but maintain the current structure of having four separate Boards.

The Initial Amendments and Controversy

In 2014, the Conservative federal government passed the Northwest Territories Devolution Act, SC 2014, c 2 (“NTDA”) which included some provisions amending the MVRMA . This was all part of the ongoing plan for the devolution of governance in the Northwest Territories, wherein the federal government transferred control of the territory's land and resources to the Northwest Territories government.

One of NTDA’s amendments, however, sought to restructure the Mackenzie Valley Land and Water Boards. Specifically, the federal government intended to combine the four Mackenzie Valley Land and Water Boards into a single consolidated “super-board.”

This proposed change was very divisive. A number of Indigenous governments and organizations in the Northwest Territories raised concerns about the planned restructuring as they perceived this proposal as failing to honour Indigenous land claims and self-government agreements. Ultimately, the T?i?ch? Government and Sahtu Secretariat Inc. filed for an injunction with the Supreme Court of the Northwest Territories to suspend the related provisions. They argued that the federal government did not have the authority to unilaterally abolish the Mackenzie Valley regulatory regime without consultation with affected indigenous communities.

The Court granted the injunction in February 2015. The purpose of the injunction was to preserve the existing regulatory processes until the Court could provide further instruction.

On September 23, 2016, the Liberal federal government launched a consultation process with all relevant parties, including Indigenous governments and organizations in the Northwest Territories, the territorial government, and other stakeholders to discuss a way forward. These discussions directly contributed to the development of the Bill.

The Proposed Amendments under Bill C-88

The Bill proposes to repeal the provisions of the NTDA that would have restructured the four Land and Water Boards of the Mackenzie Valley. Instead, under the MVRMA, the boards will retain their current structure and consist of:

  • Mackenzie Valley Land and Water Board;
  • Gwich’in Land and Water Board;
  • Sahtu Land and Water Board; and
  • Wek’eezhii (Tlicho) Land and Water Board.

The Bill also re-introduces regulatory provisions that were included in the NTDA, but did not come into force following the court injunction. These provisions have been redrafted to function under the current four-board structure and provide for the following:

  • The development of regulations respecting consultation, which are intended to help clarify the procedural roles and responsibilities respecting indigenous consultation.
  • An “administrative monetary penalty” scheme that will provide inspectors with additional tools to enforce compliance with permits and licenses under the MVRMA.
  • An “enforceable development certificate” scheme following environmental assessments and environmental impact reviews.
  • Clarification of requirements for equal proportions of nominees from government and Indigenous governments and organizations.
  • A 10-day pause period between a board’s preliminary screening decision and the issuance of an authorization to allow for other bodies under the MVRMA to refer a project to an environmental assessment.
  • Regional studies that provide the Minister with the discretion to appoint committees or individuals to study the effects of existing and future development on a regional basis.
  • The authority to develop cost-recovery regulations that would provide the federal government with the ability to recover costs associated with proceedings.
  • The extension of a board member’s term during a proceeding to ensure board quorum is maintained until the conclusion of an application decision.

Take Away

The Bill is intended to resolve years of uncertainty regarding the status of the four Boards in the Mackenzie Valley. The intent is also to streamline and modernize the regulatory regime. We will monitor the status of the Bill to see whether it is passed, and whether it can achieve these objectives