Frequently Asked Questions - Northwest Territories Devolution
General Questions on Devolution:
Q.1 When is devolution going to happen in the NWT?
The Northwest Territories Devolution Agreement comes into force on April 1, 2014. This includes the delegation of various responsibilities and authorities related to land and resources management from the federal government to the Government of the Northwest Territories, as outlined in the Agreement.
The Northwest Territories Devolution Act officially became law upon Royal Assent of Bill C-15, on March 25, 2014. Many elements of the Act came into force immediately. Some aspects of the updated regulatory regime for the NWT also came into immediate force, including provisions regarding water licenses, project time limits and fines.
Other elements of regulatory regime, such as the restructuring of the Mackenzie Valley Land and Water Board and introduction of increased Administrative Monetary Penalties (AMP’s), will be implemented over the next few years. For more information see: Regulatory Regime before and after Devolution
Q.2 Who are the Parties in the NWT devolution process?
The Government of Canada, the Government of the Northwest Territories, the Inuvialuit Regional Corporation, the Northwest Territory Métis Nation, the Sahtu Secretariat Incorporated, the Gwich’in Tribal Council and the Tlicho Government are parties to the Devolution Agreement.
Q.3 How does the devolution process work?
There are typically five phases to the devolution process:
- A framework agreement or negotiation protocol is outlined.
- An Agreement-in-Principle (AIP) is developed and signed by the key stakeholders.
- A final transfer agreement is negotiated and affirmed.
- Legislation and transition mechanisms are drafted.
- The legislation and transition mechanisms are implemented.
Q.4 How does “delegated authority” apply in the context of the Northwest Territories Devolution Act, and the Northwest Territories Devolution Agreement?
Under the terms of the Northwest Territories Devolution Agreement, and the Northwest Territories Devolution Act, powers given to the federal Minister under the Mackenzie Valley Resource Management Act, will be delegated to the Government of the Northwest Territories. The Northwest Territories Devolution Act also provides for the delegation of the powers of the federal Minister to the territorial Minister for land and water resource management decisions.
Q.5 What role will the Government of Canada continue to play in the NWT after devolution?
After devolution, the biggest change people will see in the Government of Canada’s presence in the NWT will be within Aboriginal Affairs and Northern Development Canada (AANDC). This department’s role in the NWT will fundamentally change but AANDC will continue to have a role in:
Federal departments that have a Canada-wide role in the management of lands and resources, such as the National Energy Board, Natural Resources Canada, Environment Canada and Parks Canada, may see the way they do this work in the NWT change as a result of devolution. NWT Devolution will not impact the Government of Canada’s current role in Yukon or Nunavut.
Devolution will not significantly change the role the Government of Canada plays in areas such as taxation, Territorial Formula Financing and other major transfers, infrastructure, economic development, transportation and national defense.
Q.6 Where can I get a copy of the Northwest Territories Lands and Resources Devolution Agreement?
Both the Northwest Territories Land and Resources Devolution Agreement and the Agreement-in-Principle are available online on AANDC’s website.
The AANDC website also includes information on Nunavut Devolution and Yukon Devolution
Q.7 Is it true that there is a clause in the Northwest Territories Devolution Act that will allow the federal government to overturn or veto any decision that the territory makes?
No. The Northwest Territories Devolution Act deals with land and resources management in the territory. In those areas where authority has been delegated to the territorial government under the Act, all final decisions will rest with the territorial government.
Q.8 Does the NWT Devolution Agreement violate the Constitution Act?
No, the Northwest Territories Devolution Agreement is consistent with all parts of the Constitution of Canada. In fact, the transfer of land and resource management from the federal government to a provincial or territorial government has been a basic tenant of the political history and development of Canada.
Specific provisions in the Devolution Agreement also deal with this issue, see Chapter 2, Sections 1, 2, 3 and 5 of the Agreement.
Q.9 What 'federal lands' in the Northwest Territories are excluded from Devolution?
The federal lands excluded from the NWT Devolution Agreement are listed in Schedule 4 of the Agreement.
Q.10 What proof is there that Devolution is going to be beneficial to the people of the Northwest Territories?
Devolution is not new to the north. Devolution will give Northerners greater control over their lands and resources and improve processes in the North. Yukon has gone through its own devolution process and has been handling its own affairs for a decade. Since Yukon devolution, Yukon has had 10 straight years of positive GDP growth and has exceeded Canada’s rate of national annual growth eight times out of the past 10 years. In 2012, Yukon’s GDP was $2.5 billion, $1 billion more since devolution. The benefits to the territory have included increased investment, lower unemployment, an influx of skilled labourers, and increased revenues which have been used to develop infrastructure, build new schools and hospitals and improve the overall quality of life for its citizens. The Northwest Territories stands to benefit in the same manner as its neighbor to the west.
Devolution and Aboriginal People:
Q.11 What does devolution mean for Aboriginal people in the NWT and what is being done to include them?
Aboriginal people have long played an integral role in the political development of the NWT, including their involvement in the 1977 Berger Inquiry, the signing of the 1984 Inuvialuit land claim agreement – the first land claim in the territory – as well as the signing of the first combined land claims and self-government agreement that created the Tlicho Government in 2005.
The Government of Canada strongly believes that NWT devolution provides an opportunity for Aboriginal people to help shape the future of the territory and share in the economic benefits that will flow from devolution. Throughout the negotiations, regional Aboriginal organizations have been encouraged to participate in the devolution process. The Government of Canada consulted Aboriginal groups, whether or not they have signed on as a party to negotiations, to hear and consider their views.
Regardless of the choice Aboriginal groups make on this issue, the Government of Canada intends that nothing in the Northwest Territories Lands and Resources Devolution Agreement will take away from Aboriginal treaty rights or the Crown’s legal duties and obligations towards the Aboriginal peoples of the NWT. In addition, nothing in the Northwest Territories Lands and Resources Devolution Agreement will limit the Government of Canada’s ability to negotiate land, resource and governance issues with Aboriginal groups now or in the future.
Q.12 Will devolution impact Aboriginal rights, land claim negotiations or treaty negotiations?
No, the devolution process is independent of Aboriginal land claim and self-government negotiations and will respect existing third-party agreements. Nothing in the Northwest Territories Lands and Resources Devolution Agreement will take away from Aboriginal treaty rights or the Crown’s legal duties and obligations towards the Aboriginal peoples of the NWT, nor will a final agreement limit the Government of Canada’s ability to negotiate land, resource and governance issues with Aboriginal groups. Provisions were included in the Devolution Agreement in an effort to help ensure this.
Q.13 Will devolution occur in the Northwest Territories even if some land claims haven't been finalized?
The devolution process will occur concurrently and separately from Aboriginal land claim and self-government negotiations. The negotiation of the Northwest Territories Lands and Resources Devolution Agreement was consistent with, and did not impede, negotiation processes on land claims and self-government. In addition, devolution negotiations respect existing third-party agreements.
Q.14 How were Aboriginal groups encouraged to participate in devolution discussions in the NWT?
The Government of Canada has, together with the GNWT, proactively sought, and continues to seek, to engage with all regional Aboriginal groups and provide financial assistance towards their participation in the devolution process. The Inuvialuit Regional Corporation, the Northwest Territory Métis Nation, Sahtu Secretariat Incorporated, the Gwich’in Tribal Council and the Tlicho Government are parties to the NWT Devolution process.
Canada used a three-phase consultation process to ensure Aboriginal Rights are not infringed upon. Phase one of this process was concluded in July 2012 using the Agreement in Principle, Phase two concluded in May 2013 with the signing of the Consensus Draft. Phase three, consultations on legislative proposals, was completed in October 2013. Aboriginal groups also participated in the Parliamentary review process for the Northwest Territories Devolution Act.
Q.15 Why are these regulatory changes being made now?
Regulatory improvement is timely and necessary for the Northwest Territories to benefit fully from Devolution. The need for regulatory reform becomes even more apparent as territories acquire increased authorities and responsibilities. An effective, responsive, and modern regulatory regime will ensure that the Northwest Territories will be poised to benefit fully from increased resource development and local management of lands and resources resulting from devolution.
The introduction of a modern regime in the Northwest Territories will also meet the needs of investors, developers, and employers who must rely on a clear and predictable review and assessment process to remain competitive in a global marketplace given the high cost of business in the north.
Q.16 Will the regulatory changes and amendments to the MVRMA weaken environmental protection?
Modernizing the regulatory regime, including changes to the MVRMA, will not change the existing environmental assessment process. In fact, the changes will strengthen environmental stewardship by providing regulators with modern enforcement and compliance tools such as:
- increasing fines and penalties
- implementing new Administrative Monetary Penalties
- introducing enforceable development certificates
- providing the authority to conduct Regional Environmental Studies.
Updated enforcement tools will also ensure that the enforcement and compliance regimes in the Northwest Territories are consistent with other federal environmental protection legislation in Canada.
Q.17 Following Devolution, who will control oil and gas resources in the NWT? Who will appoint a regulator?
Following Devolution all matters related to onshore oil and gas development will be the responsibility of the GNWT. The GNWT can elect to create a territorial regulator or contract external services.
All matters related to off-shore oil and gas development will remain under federal authority, as is the case with offshore oil and gas development across Canada.
Overlapping onshore and off-shore oil and gas interests in the Inuvialuit Settlement Region (ISR) will be jointly developed as a single interest under the direction of the National Energy Board common regulator.
Changes to the Mackenzie Valley Land and Water Board
Q.18 Why is the Mackenzie Valley Land and Water Board being restructured?
The Government of Canada recognizes that the North's regulatory regimes must be more effective, predictable and provide greater certainty.
The restructuring of the Mackenzie Valley Land and Water Board is an important element of regulatory improvement and is expected to come into force in Spring 2015. A consolidated, valley-wide, land and water board will ensure consistent decision making across the Mackenzie Valley. This is particularly important in areas where projects overlap several different land claim settlement areas. This will in turn contribute to increased investor confidence by demonstrating that the process is consistent, fair and transparent. Further, a consolidated board will provide clarity as additional land claims are settled in the Mackenzie Valley
Q.19 Will the Mackenzie Valley Land and Water Board appointment process change after devolution?
Currently, the chairperson of the Board is selected and appointed by the Minister of Aboriginal Affairs and Northern Development Canada from nominations made by the Mackenzie Valley Land and Water Board. This approach will remain in place until related elements of the Mackenzie Valley Resources Management Act come into force, which is expected in Spring 2015.
When the MVLWB changes come into force, the Chair will continue to be appointed by the Minister.
As they currently do, the Tlicho will continue to have the power to directly appoint to the board, consistent with their land claim agreement. The Gwich'in and Sahtu will each nominate a member for appointment by the Minister. The GNWT and unsettled land claim groups will also nominate members for appointment by the minister.
Q.20 How will the Mackenzie Valley Land and Water Board be restructured? How will the new three member committees work? Is Aboriginal representation on these boards guaranteed?
The restructuring removes the Gwich’in, Sahtu and Wek’èezhìi Land and Water Boards as regional panels of the Mackenzie Valley Land and Water Board. The Mackenzie Valley Land and Water Board will continue as the sole land and water board for the Mackenzie Valley. The restructured board calls for 11 members with a quorum of five members. The consolidated board would retain its current role with respect to the regulation of land and water in the Mackenzie Valley.
In terms of Aboriginal representation on this restructured board, the settled land claim agreements set out requirements for members of the larger board and those requirements have been accommodated in the 11-member structure.
The default size of the committees of the restructured Mackenzie Valley Land and Water Board will be three members. This will create a decision-making ratio similar to the former regional land and water board committees. The Chairperson is required, unless it is not possible, to designate the First Nation/Tlicho member from the region, to which that application relates, to the three member committees. The remainder of the members, including the chairperson of each committee, will be decided upon by the Chairperson of the Mackenzie Valley Land and Water Board. The Chairperson then has the discretion to designate additional members to deal with an application.
See also: Changes to the Mackenzie Valley Resources Management Act
Q.21 What will happen to project applications previously submitted to the Mackenzie Valley Land and Water Board for review but are still in process when restructuring occurs? Will these applications be considered under the new regime, or be ‘grandfathered’ in under the old regime?
Firstly, the provisions of the Northwest Territories Devolution Act related to the Mackenzie Valley Resource Management Act implementing land and water board restructuring are expected to come into force in Spring 2015.
Unless applications are already in the final decision-making stages, when board restructuring comes into force, any applications submitted to one of the regional panels of the former Mackenzie Valley Land and Water Board would be transferred to the new Mackenzie Valley Land and Water Board. The new Board will then complete the proceedings related to those applications.
For those applications that are in the final hearing/decision-making stages when restructuring comes into force, they will remain with the original regional panel, or Mackenzie Valley Land and Water Board members, to complete the decision-making process. In order for these final decisions to be made, original (pre-restructuring) board or panel members would be deemed temporary members of the new Board to complete the decision-making process.
Q.22 Does the restructuring of the Mackenzie Valley Land and Water Board violate existing land claim agreements? Will current land claim agreements be re-negotiated or modified?
No. A single Mackenzie Valley Land and Water Board, which will have proportional representation, as laid out in the Northwest Territories Devolution Act, is already allowed for under current Gwich’in, Sahtu and Tlicho land claims agreements.
Q.23 Were Aboriginal groups consulted on the proposed restructuring of the Mackenzie Valley Land and Water Board?
Yes. Consultations on the Action Plan to Improve Northern Regulatory Regimes were initiated in 2010. These consultations were held specifically with regard to proposed restructuring of the Northwest Territories land and water boards and ministerial policy direction under the Mackenzie Valley Resource Management Act. Consultations were later expanded to include proposed changes to the Northwest Territories Waters Act, and the Territorial Lands Act. A number of meetings were held throughout 2011, 2012 and 2013.
The consultation events provided the opportunity for Aboriginal groups/governments to understand the proposed amendments, voice their concerns and make recommendations on how to improve the legislative proposals. Following the sessions, extensive written submissions were also received.
Q.24 What role does AANDC have in the administration, in particular human resources, of the newly reformed Mackenzie Valley Land and Water Board?
The Mackenzie Valley Land and Water Board is an independent body and manages its own administration, including human resources. Elements of the updated regulatory regime affecting the restructuring of the MVLWB are expected to come into force in spring 2015. Administrative issues related to the restructuring of the MVLWB will be addressed as required over the coming months.
Q.25 Will streamlining Regional Boards under the new MVRMA lead to less informed decision making?
Streamlining the Northwest Territories land and water management process is just one element of an updated and integrated regulatory regime that will help to ensure consistent and informed decision making across the territory. It will also ensure that the Northern regulatory regime will be strong, effective, efficient and predictable.
The consolidated land and water board will still include representation from the Delcho, North Slave and South Slave regions, as well as the Sahtu, the Gwich'in, and the Tlicho regions.
The consolidated board and its structure is consistent with the provisions of existing land claims agreements and will reduce administrative and process inefficiencies, ensure consistent application of the regulatory framework and increase investor confidence in resource development in the Mackenzie Valley.
For more information see: Changes to the Mackenzie Valley Resources Management Act