Mackenzie Valley Land and Water Board

1. Mackenzie Valley Land and Water Board Land Use Permit and Water Licence Procedures Working Group 6

2. Disclosure of Preliminary Screening to MVEIRB • The Board Package is prepared and submitted for formatting to the admin staff and forwarded to the Board members. • The MVEIRB gets the entire Board Package which includes the DRAFT Preliminary Screening. • Once the Preliminary Screening is approved by the Board it is then sent to the MVEIRB.

3. Field Modification • An Inspector will make a decision in the field to modify a term and condition when requested by a Permittee or Licensee. • If possible, an Inspector will notify staff of the change before approving the modification. • The Inspector will document the modification in an inspection report

4. Amendment • An amendment to a LUP is any change to a condition of the permit, excluding the term. • An amendment is not a change to the scope of a permit. • The Preliminary Screening Requirement Regulations require that all amendments be screened. • Requests for an amendment to a LUP must include an application submitted on the legislated LUP application form. • It is necessary to have sufficient information on the application from the permittee for reviewers to understand the impact of the requested amendment

5. Amendment • A letter from the permittee must accompany the application form and the letter must set out: • The conditions which the permittee wishes to have amended; • The nature of the proposed amendment; and • The reason for the proposed amendment.

6. Amendment Process • The process for amendments is similar to new application with the application declared • A “complete” letter sent to the permittee, a preliminary screening conducted and a Board decision package prepared. • Amendments that will have little impact on the environment, the screening can involve a short review period of 10 days. • The length of the review period should reflect the requirement of reviewers to fully understand and respond to the proposal. • More complex amendments should be to the Board within 42 days.

7. Amendment Process Changes Outside the Scope • If a permittee requests changes to an operation that are not within the scope of the permit, the permittee will be told that the change requires a new permit. • The application will be handled as if it was a new application and the information requirements will be the same as for a new application.

8. Private Land vs. Crown Land • The Mackenzie Valley Resource Management Act and Mackenzie Valley Land Use Regulations do not make a distinction between Private, Crown or Commissioner’s land.

9. Use of TEK/TK • The use of TEK is not a requirement of the MVLWB • On occasion supplied but it is not a required for deeming an application complete. • Transboundary applications require the submission of TEK. • The staff then requires the expertise of the settled land claim area Land and Water Boards to provide input as to the requirements of AA and any other material

10. Land Claim Settlement vs. Non- Land Claim Areas • Require Access Agreement and Benefits Plan • Require TEK/TK • Subject to Section 35 (not the proponent) • Do not require Access Agreement and Benefits Plan • Do not require TEK/TK • Subject to Section 35 ( proponent) Settled Land Claim Non-settled Land Claim

11. Section 35.

12. Review of applications, plan and distributions, deeming applications complete The MVLWB has a check list for completion also a list of questions that each RO must ask when reviewing a file

13. Review of applications, plan and distributions, deeming applications complete • Water Licence applications are usually accompanied by a questioner. Water Licence applications require more information on the water aspect of the project. • Once the application is deemed complete it is sent to a distribution list which comprises of territorial, federal, local government, first nations and affected communities. There are distribution lists that are already established for areas, but the staff can add or remove individuals as need be.

14. Review of applications, plan and distributions, deeming applications complete • The review period ranges from 21 to 30 days depending on Board schedule and “complete” letters. • The Intern Measure Agreements between the Northwest Territories Métis Nation and the Federal Government requires a 30 day review period. Once the comments are received they are then forwarded to the applicant for their comment or action. The Board is copied on the responses. The responses if received on time will also be inserted into the board package. • The MVLWB recently adopted a new policy for Late Comments which clarifies how late comments will be processed.

15. Review of applications, plan and distributions, deeming applications complete • Plans are used both in land use permits and water licences. They are put in place to help mitigate issues that may arise. Common plans are: • Aquatic Effects Monitoring Plan; • Spill Contingency Plan; • Waste Management Plan; • Emergency Response Plan; • Water Management Plan; • Waste Rock/Ore Management Plan; and • Closure and Reclamation Plan.

16. Review of applications, plan and distributions, deeming applications complete • Once the plan is received it is then sent out for review to a distribution list. The distribution list is the same as it was for the application. • A review period is given dependant on the complexity of the plan. Comments are then received and forwarded to the licensee/permittee for their comment. • The licensee/permittee than makes the necessary changes to the plan and resubmits the plan to the board. • The new plan is then reviewed to ensure that all the comments have been included. It all the comments have been included it is then presented to the board for approval if changes are still needed to the plan it is then sent back to the licensee/permittee to make the changes. • Once the staff feel that the changes are made it is then presented to the Board. The Board can ask for more changes to be made or to approve the plan.

17. Land Use Plan Conformity • There are no approved or draft land use plans for the MVLWB to assure conformity with

18. Security Deposits • The MVLWB security template is used to calculate security deposits for new Land Use Permit applications, which include: • mineral exploration (diamond, gold or other minerals), • oil and gas exploration (drilling and seismic operations), • quarrying, • road construction, and • miscellaneous land use operations.  • Security for large scale developments and Type “A” or “B” Water Licences are calculated using RECLAIM. RECLAIM is used by the Department of Indian and Northern Affairs (INAC) and MVLWB staff should direct all inquiries for RECLAIM estimates to INAC staff.

19. Security Deposits • When preparing a Land Use Permit application to go before the Board, staff must do the following: • Calculate the estimated security for all applications by using the MVLWB model. If the Template calculates a security deposit of $50,000 or more for a project, the calculated amount is rounded up to the nearest $500. • Estimated security amount is over $50, 000.00 • Include security amount with a recommendation in the staff report outlining why a security deposit is required with supporting rationale. Include the following conditions into the Land Use Permit; • The Permittee shall deposit with the Minister a security deposit in the amount of $________ pursuant to Section 32 of the Mackenzie Valley Land Use Regulations. • The Permittee shall be liable for any cost of damages over and above the amount of the security deposit.

20. Security Deposits • Estimated security deposit is less than $50, 000.00: • Provide the Board with the security amount in the staff report with a recommendation from staff outlining why a security deposit is not required (e.g. mineral exploration program is <50, 000.00 and Inspector and staff have identified no compliance issues and recommends no security be applied). • If Inspector and staff note that a security deposit should applied for <50, 000.00, a recommendation with supporting rationale must be provided in the staff report and the Board will determine if the security should be applied.

21. Security Deposits • If MVLWB staff receive a RECLAIM estimate from INAC that is less than $50, 000.00 the same protocol should be followed as for a Land Use Security that is less than an estimate of $50, 000.00. • Generally, if the Template calculates a security deposit of less than $50,000 for a project, the actual amount of the deposit recommended is nil and the following condition is added to the permit: • All costs to remediate the area under this permit are the responsibility of the Permittee.

22. Use of Questionnaires • The purpose of the questionnaires is to solicit supplemental information from an applicant to support the application for a water licence (or renewal). • It is anticipated that the completion of this questionnaire will reduce delays arising from the Board having to solicit additional information after an application has already been submitted. • This information will also be useful during the pre-screening of the application, which must be undertaken prior to development and approval of a water licence to determine if the project needs to be referred to the Environmental Impact Review Board.

23. Use of Questionnaires • The Board requires the questionnaires for water licence applications. The developments that require the questionnaires are • Mining Exploration • Mining Industrial • Municipal Water Use • Oil and gas Exploration and Drilling

24. Permit/Licence/Plans Formatting • Once a decision is made on a Permit or Licence, the ED or SRO informs the RO in charge of the file. The RO makes any changes necessary on the Preliminary Screening, Staff Report, Permit/Licence or covering letter as per instructions from the Board. In the case of Water Licences, the RO also drafts the Reasons for Decision for signature by the Chair. The revised documents along with the approved Reasons for Decision are forwarded to Reception for formatting and final printing. • The formatted documents are given to the Chair for signature. If the signature of the Minister of DIAND is required, the Admin Clerk mails these to the Minister’s Office. It is the responsibility of the RO in charge of the file to track these documents and ensure the signed documents are returned to the MVLWB for distribution.

25. Three Day Pause • The MVLWB sends a complete Preliminary Screening to the proponent and MVEIRB. The permit or licence is issued at the same time.

26. Mailing Signed Doucments • The Admin Clerk is responsible for noting the end of the three-day pause period and if there are no objections received from the MVEIRB by the end of the three-days, faxes the permit/licence to the proponent and DIAND Land with the covering letter. The Admin Clerk also faxes a copy of the issuance letter only to all reviewers for that file. • Copies of the permit/licence, covering letter and Reasons for Decision are made by the • Admin Clerk who keeps one copy and distributes one each to: 1) the RO, 2) the Registry Clerk, 3) DIAND land, and/or 4) DIAND water. • The Admin clerk also scans the completed documents into the system and sends these directly to IT for placement on the web site.

27. Access Agreement and Benefits Plan Requirement • The MVLWB does not have a requirement for AA and BP unless the project is transboundary. • The staff then requires the expertise of the settled land claim area Land and Water Boards to provide input as to the requirements of AA and any other material

28. Reasons for Decision • Reasons for Decision are issued with every new land use permit and water licence. • The reasons can be a document on their own or included on the back of the preliminary screening. • The MVLWB issues reasons for every Land Use Permit and Water Licence. They are usually on the back of the Preliminary Screening and the Chair signs the screening. • When the Board issues a single document titled Reasons for Decision they are more complex and include: • regulatory back ground; • discussion; • reasons for particular terms and conditions; and • Boards reasons as to why they made the decision that they did.

29. Permitting in Communities/ Block Land Transfers • Sections 98 of the MVRMA provide a mechanism to exempt municipal areas from the land use permitting provisions of the MVRMA, to the extent that local governments regulate land use in their municipal areas. To implement s.98 the Government of the Northwest Territories department of Municipal and Community Affairs (MACA) and the MVLWB and the municipal governments have to consult to determine the appropriateness of the exemption on a case by case basis. This process has not been completed for any NWT community to the MVLWB’s knowledge for either s. 53 or 98. • In the absence of such consultation and agreement, the local governments (such as Norman Wells or Fort Providence) continue to regulate the use of land within their municipal boundaries through bylaws and development permits. However, the land use permitting provisions of the MVRMA are being circumvented. This may create legal risks for any development activities in these areas.

30. Permitting in Communities/ Block Land Transfers Within Municipalities • A review conducted by MACA and the MVLWB in 2005 determined that the MVLUR do apply within community boundaries that do not have legal instruments to regulate land use. In effect, the MVLWB should be issuing land use permits within community’s boundaries that do not have appropriate land management bylaws. • Before the MVLWB begins this effort s.98 of the MVRMA requires consultation and a joint determination with the Minister of MACA, in consultation with the local government, to the extent to which the local government regulates the use of land (s.98 (2)).

31. Permitting in Communities/ Block Land Transfers Within Municipalities • It is recommended that all Mackenzie Valley communities be advised, in writing, of the respective Land and Water Boards and the territorial Minister’s intention to make a joint determination (s. 53 and 98) as to the extent to which the communities’ bylaws provide for the regulation of land use within their municipal boundaries. • Those communities which have appropriate bylaws can be advised of the respective determinations of the Land and Water Boards and the Minister of MACA in the same letter and asked if they agree to be exempted. In this way, only communities which ask to be consulted or those with no land use management framework will need to be consulted.

32. Permitting in Communities/ Block Land Transfers Block Land Transfers • The lands outside of municipal areas are subject to the MVRMA and the Land and Water Boards do have the authority to issue Land Use Permits within block land transfers (BLT) land. There is no provision within the MVRMA to exempt these areas. The concern that arises in these areas is that the MVLUR permitting process and the GNWT (Commissioner’s Lands Act), process overlap. The Land and Water Boards, until recently, have taken the view that they are unable to exercise their land use permitting function in these areas until a s. 53 process has taken place. This interpretation is not consistent with the MVRMA. • The MVLWB processes applications as described in sections g) Review of Applications, Plans and Distribution and k) Deeming and Application Complete for applications in BLT’s.

33. Name Change vs. Assignment • A name change may only occur if the corporation is changing names and a new entity is not formed. In all other circumstances the permits/licence must be assigned. • To obtain an assignment of a land use permit, the Assignee must: 1. Complete the Application to Assign a Land Use Permit which includes a Declaration by the Assignor and the Signature of the Assignor; 2. Pay the security, if required, by the permit (s. 32(4) of the MVLUR); 3. Pay the Assignment fee of $50.00 made payable to the Receiver General of Canada.

34. Name Change vs. Assignment • To obtain an assignment of a water licence, the Assignee must: 1. Complete the Application to Assign a Water Licence which includes a Declaration by the Assignor and the Signature of the Assignor; 2. Pay the security required by the licence; and 3. Pay the Assignment fee of $30.00 made payable to the Receiver General of Canada. • The Board may consider the ability of the ability of the assignee to pay the costs of the security and past performance (32(2)(b)).

35. Expired Security Deposits • Mandate of INAC not MVLWB

36. Water Use Fee Calculation • The Northwest Territories Waters Regulations imply that a fee is for an annual water use estimated by the mean daily use “fee payable by a licensee for the right to the use of water, calculated on an annual basis…(s.9(1))”

37. Water Use Fee Calculations

38. Water Use Fee Calculation • For an industrial undertaking using 2500m3/day for 365 days/year the water use fee is calculated as follows: • Basis Water use fee: $30 + • Aggregate: $1.50 *25 = 37.5 • = Total Water Use Fee = $67.5

39. Public Hearing Process • Land Use Permits: • A Public Hearing may be held on any Type A Land Use Permit application • Under section 24(1) of MVRMA the Board may conduct any hearings it considers desirable for carrying out its functions 42-day time line stops • Water Licences: • The Board may hold a hearing for (see Section 21(1) of NWTWA): • Issuance, renewal, or amendment to a type B water licence; amendment to type A licence where there are changes to neither use, flow of quality, nor licence term; cancellation of a type B water licence (if the licensee applied for the cancellation)

40. Public Hearing Process The Board must hold a hearing for (see Section 21(2) of NWTWA): • issuance or renewal of a type A water licence, • amendment of a type A water licence pursuant to which the use, flow or quality of waters, or the terms of the licence, would be altered, • cancellation of a type A water licence pursuant to Section 18(1)(c), • cancellation of a type B water licence (in any other case where the licensee does not apply for the cancellation themselves–see Section 18(1)(ii) and (iii), • appropriation of lands for water project – see Section 21(2)(e).

41. Public Hearing Process The Board is not required to hold a public hearing if (see Section 21(3) of the NWTWA): • the applicant/licensee consents in writing to the disposition of the matter without a public hearing AND after giving notice of the hearing, the Board receives NO notification that anyone intends to appear and make a presentation at the hearing TEN days before the proposed date of the hearing. • It is a renewal for 60 days or less, applied pursuant to the NWTWR (can only occur once). • It is an emergency amendment to a Type A water licence (needs consent of Minister).

42. Public Hearing Process Locations of Public Hearings • See Section 21(4) of the NWTWA • in a place in the NWT considered appropriate by the Board; and • may be adjourned by the Board from time to time and from place to place within Canada

43. Public Hearing Process Public Notice of Hearings • As a mater of practice Public Notice of Hearings is 60 days prior to the hearing. Must publish notice in a newspaper of general circulation in the affected area, or if there isn’t one, then in such other manner as the Board considers appropriate AT LEAST 35 days prior to the hearing (Sect 23 (2) NWTWA) UNLESS it is an emergency licence amendment, (in which case it still requires notice of application in the local newspaper for a period of at least 10 days prior to acting on it.)

44. Public Hearing Process Local Newspaper: • Write up public notice based on previous examples. The location and time need to be finalized prior to issuing the notice. Make sure that: the date for the hearing is at least 35 days from the time it will be printed; and the deadline for written submissions (interventions) is at least 10 days prior to the hearing date. Consider more papers than just NewsNorth depending on the location of the operation, e.g. Deh Cho Drum, The Hub (Hay River). Also, consider putting this notice in twice within the timeframe prior to the hearing.

45. Public Hearing Process Other • You may also wish to consider faxing and/or emailing out the notice to the distribution list/reviewers.

46. Public Hearing Process

47. Public Hearing Process Organization • When the Board orders the public hearing, they should organize a date about 50-60 days from that time for the hearing. Then this date needs to be confirmed with those mentioned below if they are required to be there. Once confirmed, the location of the hearing should be decided and booked. • May need lawyer present. The Board will more than likely want legal counsel to be present at the hearing. Make sure he/she is available prior to booking the date of the hearing. John Donihee has been a participant at all of the MVLWB hearings to date. • Need sound system – book them early. They will also tape the proceedings from which a transcript will be made. • May need translators – if you get interventions from First Nations groups, ask if they require translation services. Admin will organize these requirements, but the RO needs to inform admin of what is required. • Need caterer – coffee/juice, cookies etc. Water jugs and glasses at each table are also a good idea. Admin should organize this. • May need a consultant. If the issues to be discussed at the hearing are of a technical nature that the Board staff is not comfortable dealing with, then bringing in a consultant as a technical advisor to the Board may be useful. Be sure to keep them informed.

48. Public Hearing Process Technical Committee? • Once the basic organization is complete, you may wish to set up a technical committee to meet and determine what information, if any, is still required to develop the terms and conditions of the licence/permit, and/or to determine what the major issues are to be dealt with at the hearing. • It is very important to have all information pertaining to the application submitted prior to the hearing and starting this process early may assist in this happening. Otherwise if additional information is submitted after the hearing, then the Board may need to reconvene the hearing to deal with it.

49. Public Hearing Process If and when interventions are submitted, • Copy all interventions to all of the other interveners including the applicant. The Board, legal counsel & any consultants that may be involved may wish to review these at this point as well. If interventions are received only from government departments, the Hearing need not necessarily go ahead. If the government departments and the applicant both agree that there is no need for the hearing (see Section 21(3)(a) of the NWTWA), then it is up to the Board on whether to go ahead with the hearing or not.

50. Public Hearing Process • Once the decision that the hearing will go ahead is made, that is a good time to start preparing a binder of information for the Board members and staff for the hearing. This binder may be divided into the following categories (or others if you see fit): draft rules for public hearings, opening comments by the Chair (see below), copies of all interventions, approved preliminary screening & review comments, the application itself & supporting information etc. • At this time as well, you may want to coordinate with legal counsel in developing opening comments for the Chair of the Board, if he/she so desires. There is a fairly standard preamble that can be used for most hearings.