Vol. 135, No. 28 — July 14, 2001

Indian Timber Harvesting Regulations

Statutory Authority

Indian Act

Sponsoring Department

Department of Indian Affairs and Northern Development

REGULATORY IMPACT ANALYSIS STATEMENT

Description

The main purpose of the proposed Indian Timber Harvesting Regulations is to address the timber harvesting requirements of the Tl'azt'en Nation. These needs are currently addressed by the Stuart Trembleur Lake Band (Tanizul Timber Ltd.) Timber Regulations.

In 1982, the Province of British Columbia offered to grant an off-reserve licence to Tanizul Timber Ltd. — the development corporation of the Tl'azt'en Nation — provided that its reserve forests were administered on an integrated basis with off-reserve forests. To allow the Tl'azt'en Nation to acquire the off-reserve licence, the Stuart Trembleur Lake Band (Tanizul Timber Ltd.) Timber Regulations (STLBTR) were brought into force in 1982. They authorized the Minister to grant a licence to Tanizul Timber Ltd. The licence was attached as a Schedule to the STLBTR.

The Tl'azt'en Nation now requires an amendment to the existing licence issued to Tanizul Timber Ltd. The amendment would remove land from the licence area because two reserves now belong to another First Nation after it split from Tl'azt'en Nation and because the Tl'azt'en Nation requires additional land for village expansion. Under the STLBTR, changes to the terms and conditions of the licence granted to Tanizul Timber Ltd. require an amendment to the STLBTR, followed by the cancellation of the existing licence and the issuing of a new licence. The proposed Indian Timber Harvesting Regulations (ITHR) would enable the granting of a timber licence to Tanizul Timber Ltd., as well as future amendments to that licence to which the parties agree, without the cumbersome requirement to amend the Regulations each time.

The proposed ITHR would also respond to the concern of the Standing Joint Committee for the Scrutiny of Regulations. It holds that there is insufficient regulation-making authority in the Indian Act to support key terms and conditions in the licence issued under the existing STLBTR.

In addition, the ITHR would provide a flexible tool for addressing the timber harvesting requirements of other First Nations whose needs cannot be adequately addressed under the Indian Timber Regulations (ITR). The ITR regulate timber harvesting on almost all reserves in Canada. Situations arise where First Nations want reserve forests managed on the same or similar terms and conditions used to manage off-reserve forests. For example, a province or territory may offer a First Nation an opportunity to manage off-reserve forests if reserve forests are managed in a manner similar to the off-reserve forests. In addition, a First Nation may have an opportunity to add land to its reserve holdings if the Department of Indian Affairs and Northern Development (DIAND) can replace an existing provincial or territorial forest licence issued to a forestry company with a similar licence issued under the Indian Act and its Regulations. The ITR do not provide an effective authority for addressing these situations. The ITR allocate licences based on tendering; in the foregoing situations, tendering is counterproductive. Furthermore, a number of terms and conditions imposed on permit and licence holders in the ITR are not compatible with terms and conditions which provinces and territories impose on off-reserve harvesters. The proposed ITHR would provide a flexible alternative to the ITR that could address these special situations.

Alternatives

To address the need to remove reserves from the licence granted to Tanizul Timber Ltd., the option of amending the STLBTR to simply remove the reserves and make other minor changes, and then cancelling the existing licence and issuing a new licence based on the amended regulation was considered and rejected for two reasons. First, over time, the need for more amendments is anticipated. A process involving regulatory changes followed by the cancellation of an existing licence and the granting of a new licence would be unresponsive to changing circumstances and therefore inflexible. Second, the approach would not address the concerns of the Standing Joint Committee for the Scrutiny of Regulations about insufficient regulation-making authority related to the payment of dues and other matters.

To address the concerns of the Standing Joint Committee for the Scrutiny of Regulations, the option of amending the Indian Act to provide for sufficient regulation making authority was considered. However, it was rejected as an option since it would not resolve the concern in the short term, would not necessarily be supported by First Nations, would be unnecessary given alternative approaches to addressing the issue, and would constitute an inappropriate use of legislative time. The option of removing from the STLBTR those specific terms and conditions for which the regulation-making authority is in doubt was rejected because any future licence issued to Tanizul Timber Ltd. would have no payment provisions.

In designing the proposed ITHR, various alternatives were considered. The option of writing the ITHR specifically for the Tl'azt'en Nation, without allowing for the inclusion of other First Nations by a simple amendment, was also considered and rejected. Other First Nations find themselves in situations similar to that of the Tl'azt'en Nation where timber licences for reserve harvesting need to be compatible with off-reserve arrangements. The ITR will not allow for this. The proposed ITHR would provide a simple and effective way to address this need.

The option of defining offences to raise penalties beyond the current level of $100 or three months imprisonment (e.g. per tree offences, or daily offences) was considered but deemed not legally feasible. The option of exempting all timber cutting by Band Councils on lands that had not been allotted, designated or placed under a timber licence, was considered as supportive of First Nation aspirations for greater control over their affairs but deemed legally infeasible because it is inconsistent with the land and resource management regime under the Indian Act. Options for terms and conditions in licences ranged from specifying all terms and conditions in the ITHR, to specifying some essential terms and conditions in ITHR and leaving other terms and conditions to be addressed contractually, to not specifying any terms and conditions in the ITHR and addressing all essential terms and conditions contractually. The last of these options was selected because of its ability to meet diverse circumstances across Canada, and the greater effectiveness of contractual remedies (e.g. civil action) versus regulatory remedies based on minimal penalties (i.e. $100 fines or three months imprisonment or both on summary conviction). This approach is also consistent with other leasing and permitting activities carried out by DIAND under the Indian Act.

Benefits and Costs

The ITHR would:

— for the Tl'azt'en Nation, enable a licence to be issued to Tanizul Timber Ltd. to meet the current need to remove two reserves and other lands needed for village expansion from its existing licence, and enable that licence to be amended, renewed or replaced over time as required without the time delays and costs of amending the current STLBTR;

— for First Nations that may subsequently come under the ITHR, allow for the establishment of reserve harvesting tenures similar to off-reserve tenures more effectively than can now be established under the ITR; and

— for the federal government, carry out a commitment made to the Standing Joint Committee for the Scrutiny of Regulations to address its concerns with the Stuart-Trembleur Lake Band (Tanizul Timber Ltd.) Timber Regulations.

The ITHR would essentially replace a regulatory regime under the ITR and the STLBTR. There would be no incremental costs.

Consultation

DIAND consulted with the following parties on the proposed ITHR: Tl'azt'en Nation (August 4, 1999, and February 3, 2000), Tanizul Timber Ltd. (August 4, 1999, and February 3, 2000), Assembly of First Nations (August 27, 1999), National Aboriginal Forestry Association (August 8, 1999), and Ministry of Forests, Province of British Columbia (November 2, 1999, and December 8, 1999).

Consultation mechanisms included: personal visits with and the provision of relevant information to the Tl'azt'en Nation, Tanizul Timber Ltd., National Aboriginal Forestry Association; a meeting with and provision of relevant information to the Assembly of First Nations; letters, telephone conversations and electronic mails with Ministry of Forests, Province of British Columbia.

The primary changes resulting from the consultation affected the title and legal definitions within the ITHR. These changes were made to eliminate confusion. Several other changes of a technical nature were also made between the initial and final drafts, but these changes were not related to the consultations. There has been no opposition to the proposed ITHR to date.

Compliance and Enforcement

Under the proposed ITHR, it would be illegal to cut timber without a licence. Where DIAND became aware of persons cutting timber without a licence, DIAND would respond by taking one or more of the following actions as appropriate in the circumstances: assessing harm from the illegal activity; consulting with the First Nation Council regarding what DIAND should do and what the Council may wish to do; threatening to seize or seizing the illegally harvested timber or working with peace officers to seize the timber; investigating the scene of the cutting and gathering evidence; issuing verbal or written warnings to the persons carrying out the illegal activity; negotiating agreements with persons carrying on the illegal activity to rectify the harm and desist from such activities in future; or referring the matter and any evidence gathered to the appropriate law enforcement agencies.

Where the holder of a licence did not comply with the terms and conditions of a licence, DIAND would address the matter in accordance with the remedies in the licence, or through civil action.

Contact

Dan Murphy, Acting Director, Environment and Natural Resources Directorate, Lands and Trust Services, Department of Indian Affairs and Northern Development, 10 Wellington Street, Hull, Quebec K1A 0H4, (819) 953-5972 (Telephone), (819) 953-1885 (Facsimile), murphyd@inac.gc.ca (Electronic mail).

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to section 57 and subsection 73(3) of the Indian Act, proposes to make the annexed Indian Timber Harvesting Regulations.

Interested persons may make representations with respect to the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Dan Murphy, Director, Environment and Natural Resources Directorate, Department of Indian Affairs and Northern Development, Room 1701, Les Terrasses de la Chaudière, Hull, Quebec, K1A 0H4.

Ottawa, July 12, 2001

RENNIE M. MARCOUX
Acting Assistant Clerk of the Privy Council

INDIAN TIMBER HARVESTING REGULATIONS

INTERPRETATION

1. The following definitions apply in these Regulations.

"licence" means a licence granted under section 5. (permis)

"peace officer" has the same meaning as in section 2 of the Criminal Code. (agent de la paix)

"first nation lands" means the reserve or surrendered lands of a band named in the schedule. (terres des premières nations)

2. Nothing in these Regulations shall be interpreted to negate the requirement to obtain an authorization under section 93 of the Indian Act before removing timber from a reserve.

APPLICATION

3. (1) These Regulations apply in respect of the cutting of timber on first nation lands.

(2) The Indian Timber Regulations do not apply in respect of the cutting of timber on first nation lands.

PROHIBITION

4. (1) Subject to subsections (2) and (3), no person shall cut timber on first nation lands without a licence.

(2) A person acting on behalf of the council of a band may, without a licence, cut timber on reserve lands that have not been allotted by the council or designated by the band if

(a) the lands are not already subject to a licence; and

(b) the timber is intended for use on first nation lands.

(3) The holder of a Certificate of Possession may, without a licence, cut timber on lands subject to the Certificate of Possession if

(a) the lands are not already subject to a licence; and

(b) the timber is intended for use on first nation lands.

LICENCES

5. (1) Subject to subsection (2), the Minister may grant a licence

(a) to a person, entitling that person, or any other person acting on behalf of that person, to cut timber on first nation lands; or

(b) to the council of a band, entitling any person acting on behalf of the council to cut timber on first nation lands.

(2) The Minister may grant a licence that includes reserve lands of a band only with the consent of the council of the band.

SEIZURE OF TIMBER

6. (1) The Minister or a peace officer may seize any timber cut on first nation lands that was not cut under a licence or in accordance with subsection 4(2) or (3).

(2) Timber referred to in subsection (1) may be seized by posting on or beside the timber a notice stating that the timber has been seized under these Regulations.

7. Where timber has been seized and no claim to challenge the seizure or to recover the timber is made within 30 days after the seizure, the timber is forfeited to the Crown.

PENALTY

8. Every person who contravenes a provision of these Regulations is liable on summary conviction to a fine not exceeding $100 or to imprisonment for a term not exceeding three months, or to both.

REPEAL

9. The Stuart-Trembleur Lake Band (Tanizul Timber Ltd.) Timber Regulations (see footnote 1) are repealed.

COMING INTO FORCE

10. These Regulations come into force on the day on which they are registered.

SCHEDULE
(Section 1)

British Columbia

Tl'azt'en Nation

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Order Amending the Approved Breath Analysis Instruments Order

Statutory Authority

Criminal Code

Sponsoring Department

Department of Justice

REGULATORY IMPACT ANALYSIS STATEMENT

Description

Before the police may use a breath instrument that is designed to ascertain the concentration of alcohol in the blood of a person, the instrument must be approved by the Attorney General of Canada. This proposed amendment would approve the instruments known as the "Alco-Sensor IV/RBT IV-K" and the "Alcotest 7110 MKIII Dual C" each as being an "approved instrument" for the purposes of the Criminal Code. The proposed Order would come into effect on the date that it is registered by the Registrar of Statutory Instruments.

Alternatives

No other regulatory alternatives were considered since the instruments meet the appropriate scientific standards, and without ministerial approval the instruments could not be used by police forces in Canada for the purposes of the Criminal Code.

Benefits and Costs

Approval of the "Alco-Sensor IV/RBT IV-K" and the "Alcotest 7110 MKIII Dual C" each as an approved instrument would permit their use by police forces in order to ascertain the concentration of alcohol in the blood of a person believed to be an impaired driver. Approval of the instruments would increase the number of "approved instruments", thereby providing police departments with increased opportunities for the purchase and use of new equipment for use in the enforcement of the law.

Consultation

These instruments were examined by the Alcohol Test Committee of the Canadian Society of Forensic Science and approval of the "Alco-Sensor IV/RBT IV-K" and "Alcotest 7110 MKIII Dual C" were recommended by this body. The Committee is composed of forensic specialists in the breath testing field and has national representation.

Compliance and Enforcement

There are no compliance mechanisms required. Use of the instruments by police authorities is voluntary.

Contact

Hal Pruden, Counsel, Criminal Law Policy Section, Department of Justice, East Memorial Building, Room 5029, 284 Wellington Street, Ottawa, Ontario K1A 0H8, (613) 941-4138.

PROPOSED REGULATORY TEXT

Notice is hereby given that the Attorney General of Canada, pursuant to the definition "approved instrument" (see footnote a) in subsection 254(1) of the Criminal Code, proposes to make the annexed Order Amending the Approved Breath Analysis Intruments Order.

Interested persons may make representations with respect to the proposed Order within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Yvan Roy, Senior General Counsel, Criminal Law Policy Section, Department of Justice, 284 Wellington Street, Ottawa, Ontario K1A 0H8.

Ottawa, June 28, 2001

YVAN ROY
Senior General Counsel

ORDER AMENDING THE APPROVED BREATH ANALYSIS INSTRUMENTS ORDER

AMENDMENT

1. Section 2 of the Approved Breath Analysis Instruments Order (see footnote 2) is amended by adding the following after paragraph (m):

(n) Alco-Sensor IV/RBT IV-K; and

(o) Alcotest 7110 MKIII Dual C.

COMING INTO FORCE

2. This Order comes into force on the day on which it is registered.

[28-1-o]

Regulations Amending the Pacific Pilotage Tariff Regulations

Statutory Authority

Pilotage Act

Sponsoring Agency

Pacific Pilotage Authority

REGULATORY IMPACT ANALYSIS STATEMENT

Description

The Pacific Pilotage Authority (the Authority) is responsible for administering, in the interests of safety, an efficient pilotage service within Canadian waters in and around the Province of British Columbia. In addition, the Authority prescribes tariffs of pilotage charges that are fair, reasonable and consistent with providing revenues sufficient to permit the Authority to operate on a self-sustaining financial basis.

These tariff increases are intended to cover the costs arising from pilotage and labour contracts, increased pilot training and other inflationary pressures with regard to general operating costs. This tariff amendment is intended to provide the Authority with the means to maintain financial self-sufficiency.

These amendments will increase the tariff rates in two stages. The first stage is intended to come into force on the day on which the Regulations Amending the Pacific Pilotage Tariff Regulations are registered and, except for section 6, remain in effect until December 31, 2002. This amendment will increase all charges by 4.5 percent with the exception of the launch replacement charge, which will become $80.

The second part of this amendment will come into force on January 1, 2003. This amendment will increase all charges by 4.5 percent with the exception of the launch replacement charge, which will remain at $80.

As part of this tariff amendment the Authority is adjusting the launch replacement fee to fund the construction of a new pilot launch. By increasing this fee the Authority can not only shorten the repayment term of a bank loan but also reduce the borrowed amount along with significant interest costs.

In general, these tariff amendments are necessary to offset the increased costs in providing pilotage services, increased pilot training, funding of pilot launch construction and general operating expenses, thereby ensuring that the Authority will continue to operate on a self-sustaining financial basis.

Alternatives

The Authority is required to provide a safe and efficient pilotage service to ensure safe navigation and protection of the marine environment. Costs have been kept to the minimum consistent with providing a safe and effective service. Further reductions in operating costs are not an alternative since this would reduce the quality of service provided by the Authority.

Benefits and Costs

The 4.5 percent increase in the pilotage charges is consistent with the current costs of providing the service and it is anticipated that these adjustments will result in an annual increase of $1,850,000. On a per assignment basis this will result in an average increase of $128 per assignment.

The increase in the pilot launch replacement charge will result in an annual increase of $400,000 or $55 per launch use. With the Authority's fleet of pilot launches approaching an average age of 30 years this new construction project can be considered essential at this time. On the few occasions that an older launch has been out of service for repairs a significant premium has been paid to rent a suitable replacement launch.

These charges, which will be absorbed by the shipping industry, are beneficial in that they will ensure the continued efficiency of the pilotage services and the Authority's capability to operate on a self-sustaining financial basis that is both fair and reasonable. In addition, the pilot launch construction project to be funded from these amendments will ensure that the Authority continues to provide on demand pilotage services, which are essential to the shipping community.

Consultation

The Authority met with the Chamber of Shipping of British Columbia (CSBC), who represents the shipping community on the West Coast of British Columbia, on June 8, 2001, and June 13, 2001, to discuss this amendment.

By way of a letter dated June 18, 2001, the Chamber of Shipping of British Columbia indicated their approval of these amendments along with a desire to hold periodic consultation with the Authority.

The Authority has committed to this periodic consultation with the CSBC along with other shipping community members, including Agents, Terminal Operators and Shipowners.

Compliance and Enforcement

Section 45 of the Pilotage Act provides the enforcement mechanism for the Regulations Amending the Pacific Pilotage Tariff Regulations in that a Pilotage Authority can inform a customs officer at any port in Canada to withhold clearance from any ship for which pilotage charges are outstanding and unpaid.

Contact

Mr. D. B. McLennan, Chief Executive Officer, Pacific Pilotage Authority, 1130 West Pender Street, Suite 1000, Vancouver, British Columbia V6E 4A4, (604) 666-6771 (Telephone), (604) 666-1647 (Facsimile).

PROPOSED REGULATORY TEXT

Notice is hereby given, pursuant to subsection 34(1) (see footnote b) of the Pilotage Act, that the Pacific Pilotage Authority, pursuant to subsection 33(1) of that Act, proposes to make the annexed Regulations Amending the Pacific Pilotage Tariff Regulations.

Interested persons who have reason to believe that any charge in the proposed Regulations is prejudicial to the public interest, including, without limiting the generality thereof, the public interest that is consistent with the national transportation policy set out in section 5 of the Canada Transportation Act (see footnote c), may file a notice of objection setting out the grounds therefor with the Canadian Transportation Agency within 30 days after the date of publication of this notice. The notice of objection should cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to the Canadian Transportation Agency, Ottawa, Ontario K1A 0N9.

Persons making representations should identify any of those representations the disclosure of which should be refused under the Access to Information Act, in particular under sections 19 and 20 of that Act, and should indicate the reasons why and the period during which the representations should not be disclosed. They should also identify any representations for which there is consent to disclosure for the purposes of that Act.

Vancouver, July 4, 2001

D. B. MCLENNAN
Chief Executive Officer of the
Pacific Pilotage Authority

REGULATIONS AMENDING THE PACIFIC PILOTAGE TARIFF REGULATIONS

AMENDMENTS THAT COME INTO FORCE ON REGISTRATION

1. Section 6 (see footnote 3) of the Pacific Pilotage Tariff Regulations (see footnote 4) is replaced by the following:

6. For an assignment to a ship set out in column 1 of Schedule 2, in waters set out in column 2, the pilotage charge payable is the amount set out in column 3 multiplied by the pilotage unit.

2. Section 8 (see footnote 5) of the Regulations is replaced by the following:

8. Despite sections 6 and 7, the total charges payable under those sections in respect of a ship are not less than $635.49.

3. The heading "Pilotage Charge ($)" (see footnote 6) of column 3 of Schedule 2 to the Regulations is replaced by "Amount ($)".

4. The portion of items 1 to 3 of Schedule 2 to the Regulations in column 3 (see footnote 7) is replaced by the following:

Item	Column 3 Amount ($)
1.	2.733
2.	5.466
3.	2.733

5. The portion of item 1 of Schedule 3 to the Regulations in column 2 (see footnote 8) is replaced by the following:

Item	Column 2 Time Charge ($)
1.	137.31

6. The portion of items 1 and 2 of Schedule 4 to the Regulations in column 2 (see footnote 9) is replaced by the following:

Item	Column 2 Cancellation Charge ($)
1.	412.72
2.	137.31

7. The portion of items 1 to 3 of Schedule 5 to the Regulations in column 2 (see footnote 10) is replaced by the following:

Item	Column 2 Out-of-Region Charge ($) (per hour or part of an hour)
1.	137.31
2.	137.31
3.	137.31

8. The portion of items 1 to 6 of Schedule 6 to the Regulations in column 2 (see footnote 11) is replaced by the following:

Item	Column 2 Transportation Charges ($)
1.	87
2.	116
3.	952
4.	272
5.	272
6.	87

9. The portion of items 1 to 7 of Schedule 7 to the Regulations in columns 2 to 4 (see footnote 12) is replaced by the following:

Item	Column 2 Charges ($)	Column 3 Additional Charge	Column 4 Pilot Boat Replacement Charge ($)
1.	260	n/a	80
2.	967	n/a	80
3.	1,250	n/a	80
4.	4,180	n/a	n/a
5.	184	$46 for each period of 15 minutes that a pilot boat is detained on standby	n/a
6.	539	n/a	n/a
7.	2,127	n/a	n/a

AMENDMENTS THAT COME INTO FORCE ON
JANUARY 1, 2003

10. Section 8 of the Regulations is replaced by the following:

8. Despite sections 6 and 7, the total charges payable under those sections in respect of a ship are not less than $664.09.

11. The portion of items 1 to 3 of Schedule 2 to the Regulations in column 3 is replaced by the following:

Item	Column 3 Amount ($)
1.	2.856
2.	5.712
3.	2.856

12. The portion of item 1 of Schedule 3 to the Regulations in column 2 is replaced by the following:

Item	Column 2 Time Charge ($)
1.	143.49

13. The portion of items 1 and 2 of Schedule 4 to the Regulations in column 2 is replaced by the following:

Item	Column 2 Cancellation Charge ($)
1.	431.29
2.	143.49

14. The portion of items 1 to 3 of Schedule 5 to the Regulations in column 2 is replaced by the following:

Item	Column 2 Out-of-Region Charge ($) (per hour or part of an hour)
1.	143.49
2.	143.49
3.	143.49

15. The portion of items 1 to 6 of Schedule 6 to the Regulations in column 2 is replaced by the following:

Item	Column 2 Transportation Charges ($)
1.	91
2.	119
3.	995
4.	284
5.	284
6.	91

16. The portion of items 1 to 7 of Schedule 7 to the Regulations in columns 2 and 3 is replaced by the following:

Item	Column 2 Charge ($)	Column 3 Additional Charge
1.	272	n/a
2.	1,011	n/a
3.	1,306	n/a
4.	4,368	n/a
5.	192	$48 for each period of 15 minutes that a pilot boat is detained on standby
6.	563	n/a
7.	2,223	n/a

COMING INTO FORCE

17. (1) These Regulations, except sections 10 to 16, come into force on the day on which they are registered.

(2) Sections 10 to 16 come into force on January 1, 2003.

[28-1-o]

Footnote 1

SOR/82-171

Footnote a

R.S., c. 27 (1st Supp.), s. 36

Footnote 2

SI/85-201

Footnote b

S.C. 1998, c. 10, s. 150

Footnote c

S.C. 1996, c. 10

Footnote 3

SOR/97-566

Footnote 4

SOR/85-583

Footnote 5

SOR/2001-153

Footnote 6

SOR/97-566

Footnote 7

SOR/2001-153

Footnote 8

SOR/2001-153

Footnote 9

SOR/2001-153

Footnote 10

SOR/2001-153

Footnote 11

SOR/2001-153

Footnote 12

SOR/2001-153

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