The proposed Nunavut Planning and Project Assessment Act (“NPPAA”) was introduced to Parliament for first and second reading as Bill C-47 on November 6, 2012. This legislation is the long-awaited response to the federal government’s obligation under the 1993 Nunavut Land Claims Agreement (“NLCA”) to produce legislation setting out the processes for land use planning and environmental impact assessments in Nunavut. The proposed NPPAA is the product of extensive consultations with the Nunavut Tunngavik Incorporated and Inuit Organizations, the Nunavut Planning Commission (“Commission”) and the Nunavut Impact Review Board (“Board”), the Government of Nunavut, industry, and the public.
The proposed NPPAA outlines the process to be followed by the Commission and the Board, and proposes to establish a more streamlined system for environmental assessments and land-use approvals. The objective of the proposed legislation is to improve the impact assessment process for projects affecting the Nunavut Settlement Area, and to provide industry with clear, consistent and transparent guidelines for development. The new legislation is intended to encourage investment in Nunavut by reducing regulatory uncertainty, thus making projects in the territory more attractive and profitable.
The proposed NPPAA applies to projects both wholly inside the Nunavut Settlement Area (“NSA”) and those partly carried out in the NSA.
Part 3 of the proposed NPPAA sets out the process by which the Commission and the Board will assess proposed projects. In the course of their assessments, the Commission and the Board will consult with Aboriginal communities and other interested parties, determine whether a proposal conforms to an applicable land use plan, and examine how the proposed project will affect the environment of the NSA and its people.
A key component of the proposed NPPAA is the inclusion of timelines for environmental assessments. Timelines are included for several steps of the assessment process with the objective of speeding up, and adding certainty to, the process.
In general terms, project proposals are submitted to the Commission and reviewed to make sure that they conform with the requirements of an applicable land use plan. Projects that conform with such plans are exempt from screening, if the projects are comprised wholly of one or more of the exempt activities listed in the Schedules to the NPPAA. Projects that do not conform with a land use plan may still be approved, if the plan itself allows for minor variances in the circumstances and a variance is granted by the Commission. Some projects may also include non-exempt activities as prescribed in the regulations, and therefore must undergo screening.
Screening is performed by the Board. The purpose of screening is to determine whether a proposed project has the potential to result in significant, adverse ecosystemic or socio-economic impacts and, accordingly, whether it requires a review by the Board, or alternatively by a federal environmental assessment panel. Scope of the project is determined by the Board. After a screening, the Board will report its recommendations to the Minister of Aboriginal Affairs and Northern Development Canada. Even if the Board finds that a review is not required, the Minister may reject those recommendations and direct that a review be conducted.
If a review is required, the Minister, in consultation with other responsible ministers and the Board, will determine whether the Board will conduct the review, or whether a federal environmental assessment panel will be required. The proposed NPPAA affords the Board broad discretion for the manner in which reviews are conducted. The general rule is to have open public hearings, however hearings may be closed to the public if it would cause harm to those involved, or the environment. Among other factors, cumulative effects of the projects and traditional knowledge or community knowledge must be considered during a review.
A report shall be submitted to the Minister following the Board’s, or federal panel’s, determination whether or not the project should proceed. The report shall outline the determination and may recommend certain terms and conditions for the project. The Minister may accept, reject, or vary the findings and recommendations in the report. The Board shall then issue a project certificate in accordance with the Minister’s decision.
The Board and Commission have been engaged in the review of proposed developments for over 15 years based on their NLCA authorities and have well developed frameworks including rules and guidelines. The NPPAA will enhance the detail in relation to these processes, set out new timelines for the completion of this work and generally contribute to greater certainty for industry and others affected by land use plans and the requirement to secure environmental assessment approvals before initiating developments. This legislation was developed in close collaboration with Inuit Organizations and it is a welcome initiative which should contribute to the regulatory attractiveness of Nunavut.
Other important legislative instruments already in force include the 1993 Nunavut Land Claims Agreement and the Nunavut Waters and Nunavut Surface Rights Tribunal Act, SC 2002, c 10.