Canada: Municipalities And The Environmental Regulatory Systems Of The Northwest Territories

Municipalities are both subject to environmental and regulatory laws, as developers and operators, and are themselves regulators in certain contexts. Municipalities both have special powers under key environmental laws and general regulatory powers within their boundaries. This blog will go over municipalities' powers and responsibilities in this system both when they are acting as operators and when they are acting as regulators.

Executive Summary

Municipalities in the North regularly interact with the environmental regulatory system. Often, they are required to obtain permits and licenses under this system to operate key pieces of municipal infrastructure, like landfills and sewage systems. However, they also have direct roles in regulating private operators within their boundaries.

Broadly speaking, the key environmental laws in the Territory regulate projects as either the use of land, the use of/deposit of waste into water or both.

The Northwest Territories is divided into two regions: the Mackenzie Valley and the Inuvialuit Settlement Region (ISR). What laws a municipality must operate under and what its regulatory powers are will vary by which region of the Northwest Territories it is located in and whether it is organized under an Indigenous self-government agreement (SGA).

The Mackenzie Valley

Municipalities in the Mackenzie Valley are subject to regulation under the Mackenzie Valley Resource Management Act (MVRMA)¹ , a federal statute, and the related Waters Act², a statute of the Government of the Northwest Territories (GNWT). A family of boards issues authorizations under both of these laws to operators who are required to obtain them.³ Operators, including municipalities, running a project that exceeds certain thresholds for land or water use or the deposit of waste must be authorized under these acts.⁴

When a municipality is acting as an operator, it is treated largely the same as any other operator. A key exception being that municipalities are not currently required to post performance securities, or in other words to provide money that can be used if the town fails to maintain or remediate its project site as required.⁵

When a municipality is acting as a regulator, it has special rights and powers within this system. First, the MVRMA recognizes municipalities' authority to regulate land use and planning within their own boundaries – they are exempt from Part 2 of the MVRMA, which concerns this Act's system of regional land use planning.⁶ Further, any municipality within the Mackenzie Valley can take over the regulation of land and water use within its boundaries on certain conditions. If a municipality creates a system of this kind of regulation that is consistent with the MVRMA system, then the boards will step aside and allow it to handle land and water regulation within its boundaries.⁷ To date, the boards have not found any municipality's environmental regulatory system to be strong enough to step aside. However, municipal bylaws, such as zoning bylaws and their permitting requirements, still apply to projects happening within a municipality.⁸

Municipalities also have key decision-making powers. Projects within the Mackenzie Valley must all go through a “preliminary screening”, or an initial assessment of their likely environmental impacts. Those judged to have “significant adverse impacts” are referred to “environmental assessment”, which requires a much longer and more detailed review.⁹ A municipality can direct the reviewing board to refer a project to an environmental assessment, even if the board does not believe it merits this, if the project will take place in that municipality's boundaries or if it might have an impact on the environment within them.¹⁰ Municipalities also are to receive copies of board decisions that may affect them.¹¹

Self-Government Agreement Municipalities

Currently, five municipalities within the Mackenzie Valley are organized under Indigenous self-government agreements. Deline in the Sahtu region¹² and the four municipalities organized under the Tlicho Government (TG)¹³ each have unique regulatory powers and unique relationships with the MVRMA system.

These municipalities can exempt uses from authorizations requirements within their boundaries.¹⁴ Deline and the TG can also set more stringent permitting/licensing requirements than those set by the MVRMA system.¹⁵ The TG is also allowed to delegate its MVRMA powers to its municipalities through its own laws, so these powers could in theory also be used by these municipalities.¹⁶

Inuvialuit Settlement Region

The MVRMA does not apply in the Inuvialuit Settlement Region.¹⁷ The GNWT's Waters Act is administered by the Inuvialuit Water Board.¹⁸ This keeps the regulation of the use of water and the deposit of waste in the ISR comparable to the rest of the Territory.

However, there is no law in the ISR that regulates land use in the ISR as the MVRMA does in the Mackenzie Valley. Some land owned by the GNWT is subject to a similar permitting system, but this system effectively does not apply within municipalities or on privately owned land (including Inuvialuit land).¹⁹ A municipality or a private operator carrying out a project on land that is either privately owned or within municipal boundaries would not (or almost never) require a permit for land use.

Take Aways

Any municipality operating in this system, either as an operator or a regulator, has many legal issues to navigate. This is by no means a comprehensive description of all such issues a municipality would face, but it shows the unique situation these governments find themselves in whenever a project of any significance is occurring in and around their boundaries.

Footnotes

1. Mackenzie Valley Resources Management Act, SC 1998, c 25.

2. Waters Act, SNWT 2014, c 18.

3. MVRMA ss. 54-57.2, 99(1); compare Waters Act at s. 1, definition of “Board” to include the MVRMA boards, with s. 26 granting power to issue licenses to “Board”.

4. Mackenzie Valley Land Use Regulations, SOR/98-429, ss. 4-5 and Waters Regulations, R-019-2014, s. 4.

5. See e.g. City of Yellowknife – Recommendation for Approval – Type A Water Licence, February 18, 2022, at s. 6.4/p. 20.

6. MVRMA s. 34.

7. MVRMA ss. 53 and 98.

8. Joint Determination Made Pursuant to Section 98 of the Mackenzie Valley Resource Management Act for the City of Yellowknife, Mackenzie Valley Land and Water Board, August 18, 2011, available online at https://mvlwb.com/sites/default/files/documents/City-of-Yellowknife-Determination-August-18-2011.pdf.

9. MVRMA s. 125.

10. MVRMA s.126(2)(d).

11. MVRMA s. 130(4).

12. Deline Final Self-Government Agreement, available oneline at https://www.deline.ca/wp-content/uploads/2016/10/Deline-Final-Self-Government-Agreement.pdf.

13. Land Claims and Self-Government Agreement Among the Tlicho and The Government of the Northwest Territories and the Government of Canada, Chapter 8, available online at https://tlicho.ca/sites/default/files/documents/government/T%C5%82%C4%B1%CC%A8cho%CC%A8%20Agreement%20-%20English.pdf.

14. MVRMA ss. 72.02, 90.2, 90.21; Waters Act at ss. 12(1), 12.5. Note that Deline appears not to have the ability to exempt the use of waters/deposit of waste in federal areas, as the TG does (likely because there is no overlap between federal and Deline areas).

15. MVRMA ss. 90.1, 90.11; Waters Act ss. 12.1, 12.2.

16. MVRMA s. 4(4)(d).

17. MVRMA s. 2 definition of “Mackenzie Valley” and s. 6.

18. Waters Act ss. 13 et seq.

19. Northwest Territories Land Use Regulations, R-012-2014, at s.5, Northwest Territories Lands Act, SNWT 2014, c 13, at s. 2 and Commissioner's Land Act, RSNWT 1988, c C-11, s. 2.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.