FEDERAL REG

SOR/2017-103: Issuance of Interests in Public Lands in the Northwest Territories (Central and Eastern Portions of the South Slave Region) — Order Prohibiting Northwest Territories Act

REGISTRATION OF FEDERAL REGULATION - VIA PART II OF THE GAZETTE

Registered
June 2, 2017


REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Order.) Issues The Government of Canada needs to ensure that third party interests that would constitute a disposal of land are not issued for 2 400 square kilometers of land located in the southeast portion of the Northwest Territories in advance of a land claims settlement with the Athabasca Denesuline Indigenous group. To ... (Click for more)


Published on June 15, 2017

Bill Summary

SOR/2017-103: Issuance of Interests in Public Lands in the Northwest Territories (Central and Eastern Portions of the South Slave Region) — Order Prohibiting Northwest Territories Act

REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Order.) Issues The Government of Canada needs to ensure that third party interests that would constitute a disposal of land are not issued for 2 400 square kilometers of land located in the southeast portion of the Northwest Territories in advance of a land claims settlement with the Athabasca Denesuline Indigenous group. To ensure the protection of the land, and to honour the Government of Canada’s agreement with the Athabasca Denesuline, the Governor in Council has enacted a regulation (Prohibition Order) pursuant to paragraph 56(b) of the Northwest Territories Act. This Prohibition Order will prohibit the disposal of land within the defined boundary for a period of five years, but will continue to allow (1) the disposition of substances or minerals under the Territorial Quarrying Regulations; and (2) existing interests or licences for mining-related or petroleum-related activities. This will ensure that these lands will be available for transfer to the Athabasca Denesuline or other Indigenous groups when the settlement agreement is finalized. The acquisition of interests by third parties in the lands selected as part of the settlement agreement negotiations would be detrimental to the conclusion of the Government of Canada’s negotiations with the Athabasca Denesuline and it would increase costs related to the land component of the out-of-court settlement. Background Prior to April 1, 2014, management of lands and resources in the Northwest Territories was the responsibility of the Government of Canada. To achieve political, regulatory and economic stability in the North as a result of uncertainty over the scope of claims made by various Indigenous groups to the lands and resources, the Government of Canada began negotiating modern treaties/land claim agreements with the various Indigenous organizations in the North. These modern treaties/land claims agreements create certainty over the ownership, use and management of land and natural resources, fostering economic growth for both Indigenous and non-Indigenous communities through economic opportunities. In 1991, during the negotiations of the Nunavut Land Claims Agreement, a modern treaty with the Inuit of what is now Nunavut, the Athabasca Denesuline launched the Benoanie litigation against the Government of Canada alleging that Canada breached its fiduciary duty by not ensuring that their asserted Treaty or Aboriginal land, harvesting, and harvesting-related rights were recognized and protected. The Government of Canada entered into out-of-court settlement negotiations in 2000 to address the Athabasca Denesuline’s asserted Treaty and Aboriginal rights. The goal of the negotiations is to negotiate a land claim agreement addressing the issues raised by the litigation. The agreement will be similar to other modern treaties as it contemplates a land component that is constitutionally protected; however, it does not include a self-government component. In September 2012, the Government of Canada and the Athabasca Denesuline reached an agreement on which lands would be included as part of the land selection negotiations. In order to ensure that the lands selected for negotiations remained free of any third party interests on either the surface or subsurface of those lands, the Governor in Council approved an interim land withdrawal by order on March 31, 2014. The interim land withdrawal prevented the Government of Canada, as manager of the lands in the Northwest Territories, from issuing rights or interests (e.g. for mining exploration) to individuals or organizations (referred to as third parties) on the land subject to the terms and conditions of the interim land withdrawal (referred to as “disposing of interest in lands”). An order was required to give the Department of Indigenous and Northern Affairs Canada the authority to refuse an application to obtain an interest in the land. Without an order, the Department did not have the authority to proceed contrary to the regulations. On April 1, 2014, five days after the order protecting the Athabasca Denesuline’s selected lands came into force, the Government of Canada transferred the administration and control of lands in the Northwest Territories to the Government of the Northwest Territories, pursuant to amendments to the Northwest Territories Act and to the Northwest Territories Lands and Resources Devolution Agreement (the Devolution Agreement). Consequently, the Government of the Northwest Territories now has responsibility for land management in the Northwest Territories. The Devolution Agreement also contains two provisions that allow the Government of Canada to take from the Government of the Northwest Territories the administration and control of public lands or prohibit the issuing of interests or authorize any activities on those lands prior to the Government of Canada taking those lands or if the prohibition is required for the settlement of Aboriginal land claims. Pursuant to the Devolution Agreement (sections 2.9 to 2.11), the Government of the Northwest Territories replaced existing federal interim land withdrawals orders by maintaining the same terms and conditions under territorial Commissioner’s orders. The 2014 federal order interim land withdrawal, which protected the lands selected as part of the Athabasca Denesuline settlement negotiations, was replaced by a Commissioner’s order that was due to expire on April 1, 2016. Before it could expire, the Government of the Northwest Territories renewed the Commissioner’s order for another year, ensuring that interests in the lands selected as part of the settlement negotiations could not be issued to third parties until after March 31, 2017. The renewed Commissioner’s order did not include any land parcels that had been negotiated after April 1, 2014, which means that interests in those lands could be issued to third parties. Approximately 32% of the lands identified for potential selection were not protected by the renewed Commissioner’s order. On April 25, 2016, the Athabasca Denesuline filed a judicial review in Federal Court challenging the Government of Canada’s purported failure to protect the entirety of their land. In October 2016, the Minister of Indian Affairs and Northern Development decided to seek a Prohibition Order from the Governor in Council, pursuant to paragraph 56(b) or the Northwest Territories Act, to protect all of the lands selected by the Athabasca Denesuline as part of their out-of-court settlement agreement, for a period of up to five years, or until the agreement comes into effect, whichever comes first. Objectives The objective of the Prohibition Order is to protect all of the lands that were selected as part of Athabasca Denesuline out-of-court settlement agreement negotiations with the Government of Canada, from the establishment of new third party interests. This objective aligns with the Government of Canada’s priority of advancing reconciliation with Indigenous peoples and the obligation to negotiate in good faith in a manner that upholds the Government of Canada’s integrity in its relationship with Indigenous peoples. Description The Prohibition Order will prohibit the Government of the Northwest Territories from disposing (issuing or granting interests) to any persons or corporations, lands (including surface and subsurface lands) selected by the Athabasca Denesuline as part of the out-of-court settlement agreement in the southeastern Northwest Territories. The Prohibition Order includes a few exceptions, which can broadly be classified in two groups: (1) the disposition of substances or minerals under the Territorial Quarrying Regulations; and (2) existing interests or licences for mining-related or petroleum-related activities on the lands subject to the Prohibition Order. The Prohibition Order is in effect for a period of five years or until the settlement agreement with the Athabasca Denesuline comes into force. A map identifying the lands to be subject to the Prohibition Order, along with a list of exceptions, may be found on the Indigenous and Northern Affairs Canada website at https://www.aadnc-aandc.gc.ca/eng/1480964509948/1480964606684. Individuals and corporations interested in acquiring an interest in the lands identified in the Prohibition Order will be impacted because the Government of the Northwest Territories will be prevented from issuing certain interests in the lands. Individuals or corporations seeking to renew existing interests will not be impacted since this will be excluded from the Prohibition Order. “One-for-One” Rule The “One-for-One” Rule does not apply to this Prohibition Order, as there is no change in administrative costs to business. Small business lens The small business lens does not apply to this Prohibition Order, as there are no known costs to small business. Consultation General Overall, the public is generally supportive of concluding agreements with Indigenous groups, and this Prohibition Order will help to facilitate the conclusion of an out-of-court settlement agreement with the Athabasca Denesuline in the near future. The Prohibition Order would not adversely affect the Aboriginal or Treaty rights of any Indigenous group, as it would not confer ownership rights to the Athabasca Denesuline or to any particular Indigenous group. The Prohibition Order is neutral or non-specific in terms of which Indigenous groups are associated with the lands that are being protected. This means that in the event of an overlap of land selection interests, the land is protected regardless of the Indigenous group claiming rights to those specific parcels of land. The final transfer of land would only happen upon the effective date of a final agreement, and only after completing section 35 Crown consultations with Indigenous groups with asserted or established Treaty or Aboriginal rights in this area. Consultations The Northwest Territories Act requires the Government of Canada to consult with the Government of the Northwest Territories and with Indigenous groups who are party to the Devolution Agreement, and who have asserted or established Treaty or Aboriginal rights in the area subject to the Prohibition Order. Indigenous and Northern Affairs Canada commenced the statutory consultations when the Department provided notice of the proposed Prohibition Order on November 29, 2016, to the Government of the Northwest Territories as well as to three Indigenous groups who are party to the Devolution Agreement and who have asserted or established Aboriginal or Treaty rights in the region (K’atl’odeeche First Nation, the Northwest Territory Métis Nation and Salt River First Nation). In addition to the statutory consultation requirements, Indigenous and Northern Affairs Canada consulted four other Indigenous groups at the same time, who have established or asserted Treaty or Aboriginal rights in the area subject to the regulation (the Akaitcho Dene First Nations, the Athabasca Denesuline, the Ghotelnene K’odtineh Dene and Smith’s Landing First Nation). These additional consultations ensured that all seven Indigenous groups with asserted or established Treaty or Aboriginal rights in the southeastern Northwest Territories were consulted on the Prohibition Order. Two responses from the various parties consulted were received on or before January 13, 2017, one from an Indigenous group and the second from the Government of the Northwest Territories. One Indigenous group was concerned that the Prohibition Order would affect its own land interests in the area. Indigenous and Northern Affairs Canada met with this group and assured them that the Prohibition Order does not confer ownership rights, but would protect the land pending the outcome of the section 35 consultations on the draft Athabasca Denesuline Final Agreement, on which they are also being consulted. The Government of the Northwest Territories raised concerns about the amount of land negotiated by the Athabasca Denesuline and Canada. The Government of the Northwest Territories indicated its view that proceeding with the Prohibition Order would be a step backwards in the constitutional evolution of the Government of the Northwest Territories as the public government in the Northwest Territories, and impact on the ongoing Government of Canada and Government of the Northwest Territories cooperation under the Devolution Agreement. Overall, the Government of the Northwest Territories takes the position that this action is a departure from the strong and productive collaboration the two governments have previously enjoyed while working on other settlement negotiations. Additionally, Indigenous and Northern Affairs Canada issued notices in local media outlets in English and French, advising the public of the proposed Prohibition Order and to visit the Indigenous and Northern Affairs Canada website for further information at https://www.aadnc-aandc.gc.ca/eng/1480964509948/1480964606684. Indigenous and Northern Affairs Canada received a few requests for clarification from the general public, though no concerns were raised. The Government of Canada is in the process of conducting section 35 Crown consultations on the draft Athabasca Denesuline Final Agreement, including the land selections, with the Indigenous groups who have asserted or established Aboriginal or Treaty rights in the southeastern Northwest Territories. These consultations will further inform the Government of Canada as to whether any of the lands selected by the Athabasca Denesuline will have an impact on the rights of other Indigenous groups. Should impacts be identified, the Government of Canada will accommodate where necessary and as appropriate. Rationale The Government of Canada has been in land selection negotiations with the Athabasca Denesuline to finalize the out-of-court settlement for the last four years. As part of the land selection negotiations, lands identified through the negotiations process have been protected from third party interests through the use of interim land withdrawal orders. These land management tools prevent the Government from disposing (issuing or granting interests) to any persons or corporations any lands (including surface and subsurface lands) selected through the Athabasca Denesuline lands selection negotiations. On April 1, 2017, the existing protections ended for all lands identified for potential selection. The Prohibition Order will help to ensure that the out-of-court settlement negotiations with the Athabasca Denesuline proceed towards completion by ensuring that the land selections the Government of Canada negotiates with the Athabasca Denesuline are protected from the establishment of any possible third party interests. Also, the Prohibition Order will help reduce costs to the Government of Canada by (1) eliminating any ongoing judicial review costs; (2) ensuring that the Government of Canada does not need to buy-out or expropriate interests on lands selected by the Athabasca Denesuline in order to conclude the out-of-court settlement; and (3) ensuring the conclusion of the out-of-court settlement in the near future, and thus eliminating any ongoing costs related to the 1991 Benoanie litigation. The Prohibition Order is not expected to have a negative impact on industry in general and the mining industry in particular. Recent news articles (e.g. http://www.cbc.ca/news/canada/north/cutbacks-site-inspections-lands-nwt-1.3980829 and http://www.myyellowknifenow.com/21850/nwt-mining-revenues-and-exploration-spending-down/#) report that mining activity throughout the Northwest Territories has decreased significantly, with some estimates indicating a 30% decrease. To date, there have been no requests this year for prospecting permits for this area. Existing interests on the lands covered by the Prohibition Order are not affected and the interest holder will be able to advance its interests by continuing to carry out activities related to its interest. The Prohibition Order does not preclude prospecting activity, as this activity does not require the granting of any third party interests. Implementation, enforcement and service standards The Government of the Northwest Territories has been informed that a Prohibition Order pursuant to paragraph 56(b) of the Northwest Territories Act has been made and will be in effect for a period of five years or until the settlement agreement with the Athabasca Denesuline comes into force. Contacts Glen Stephens Manager Land and Water Resources, Natural Resources and Environment Branch Northern Affairs Organization Indigenous and Northern Affairs Canada Les Terrasses de la Chaudière 15 Eddy Street, 10th Floor Gatineau, Quebec K1A 0H4 Telephone: 819-994-7483 Email: [email protected] or Janet Pound Chief Land Negotiator Negotiations East Branch Treaties and Aboriginal Government Indigenous and Northern Affairs Canada Bellanca Building, 3rd Floor Yellowknife, Northwest Territories X1A 2R3 Telephone: 867-669-2752 Email: [email protected] Footnote a S.C. 2014, c. 2, s. 2 Footnote b S.C. 2014, c. 2, s. 2

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