Search

Making the Rules

How does legislation get made in the NWT?

The Government of the Northwest Territories (GNWT) is overhauling much of its legislation that deals with land, water, and natural resource management.  Why now?  It all stems from the GNWT’s 2014 Devolution Agreement with the federal government, which transferred these responsibilities from Canada to the territorial government, in collaboration with those Indigenous governments that have signed on to the agreement.

To follow through with the agreement and take on these new responsibilities, the GNWT had to create its own territorial legislation and regulations. But most of the GNWT’s new legislation at the time was mirrored from the federal acts it wanted to replace. This legislation did not include the views, desires or priorities of NWT residents. Today, many of these acts remain outdated and do not reflect the needs, wants and realities of the peoples of the Northwest Territories.

The current work to amend, update and rewrite legislation should:

  • Bring consistency to the NWT’s laws;
  • Give the residents of the Northwest Territories a greater say in how lands, waters, and natural resources are managed in their homeland;
  • Eliminate differing or conflicting sets of rules and standards found within multiple territorial and federal acts;
  • Increase the involvement of Indigenous government organizations in decision-making through the incorporation of the co-management system established in their lands and resources agreements;
  • Recognize new best practices for environmental management in the areas of climate change, sustainability, public participation, and transparency; and
  • Allow the GNWT, in collaboration with Indigenous governments, to assume all of the responsibilities transferred from Canada through devolution.

When does new territorial legislation get made?

What are the basic steps when new legislation is created?

1. Proposing new legislation

When the GNWT starts looking to amend legislation or regulations, officials from the appropriate departments research possible changes. They can ask experts, Indigenous government organizations and other stakeholders with an interest in the subject matter for their opinions early on.  A discussion paper or public survey may be undertaken as part of this research.

(Note: As part of the Devolution Agreement, the GNWT is required to work with Indigenous governments that have signed on to the agreement to draft environmental and resource management legislation, through the Intergovernmental Council (IGC).)  There is a specific Legislative Development Protocol that outlines how this will take place.

2. Researching and writing a bill

If Cabinet approves the proposal, the new act or amendments (now called a bill) begin to take shape. The group drafting the bill may ask Indigenous government organizations and groups with expertise on the subject matter for input. But that is not always the case.

When a draft of the bill is completed, it again goes to Cabinet for review. Cabinet can approve the bill, send it back for revision, or reject it. If it is approved, the bill is ready for the Legislative Assembly.

3. Making the bill a law

MLAs read, review, discuss, and debate the bill in the Legislative Assembly and bring it out to the public for feedback. MLAs ultimately decide whether or not to vote a bill into law.

In the NWT’s Legislative Assembly, a bill must complete many steps before it becomes a law.  Those steps are laid out the Rules of the Legislative Assembly.

There is also a new agreement or Process Convention on how Indigenous governments will be involved in the review of a Bill by Standing Committee.  This includes the opportunity to appear before Committee and to see and comment on any proposed changes.

In the NWT’s Legislative Assembly, a bill must complete many steps before it becomes a law.  This includes three readings, Committee review, possibly public hearings, amendments and a report. 

Here is a video that also explains the process.

1.

First Reading

2.

Second Reading

3.

Committee Stage

4.

Committee of the Whole Review

5.

Third Reading

6.

Assent and Proclamation

7.

In Force

GNWT Regulations

Regulations are legally-binding pieces of law that are authorized or enabled under legislation.  Legislation is often broad and sweeping, particularly when it comes to environmental and resource management.   Many of GNWT's resource management laws create frameworks for Ministerial authority with a lot of the details left to be worked out in regulations. Regulations are made by Ministers and their departments an some of these require Cabinet approval.

While Indigenous governments are now involved in the development of resource management regulations as shown here, there are almost no requirements for public engagement or the involvement of regular MLAs.   GNWT has used its "Have Your Say" portal to allow for public engagement on the development and review of some draft regulations but there does not appear to be any consistency in how, when and for what, this process is used.

When regulations are finalized, they are published in something known as the Northwest Territories Gazette which is found on-line with the Department of Justice.  This publication appears monthly with no notice of its contents.  Regulations are also posted to the Department of Justice's Legislation of the Northwest Territories webpage and appear under the enabling legislation which is listed alphabetically.

Cabinet Operational Guidelines--Publishing Proposed Regulations

The only written policy developed by GNWT on public engagement in regulation-making is found in the obscure or little known Executive Council Submissions Handbook.  Appendix 3.11 contains something called the Cabinet Operational Guidelines--Publishing Proposed Regulations. 

Although the purpose seems quite broad:

"The purpose of this Operational Guideline is to provide guidance for GNWT Departments and Agencies with respect to the publishing of proposed regulations, including authority for decisions about whether a proposed regulation should be published, criteria for making
decisions regarding publishing regulations, and procedures for publishing regulations."

The reality is that the guidelines are completely discretionary as shown below. 

Departments and Agencies may wish to use the following criteria, amongst others, to determine whether a proposed regulation should be published:

  • Does the proposed regulation make significant changes to the regulatory system that currently exists, or does it introduce a new system?
  • Does the proposed regulation change the way in which a person can access a program or service offered by the government?
  • Does the proposed regulation relate to an area of apparent public interest?
  • Does the proposed regulation impact who can participate in a certain activity?
  • Could the proposed regulation affect the efficiency or viability of a business?
  • Could the proposed regulation negatively affect the interests of individuals?
  • Does the proposed regulation impose a new fee or fine, or substantially increase an existing fee or fine?

Proposed regulations that do not need to be published. 

There are considerations for why a proposed regulation would not need to be published.
These include:

  • Proposed regulations made by an authority other than a Minister or Executive Council (or the Commissioner-in-Executive Council acting on their recommendation).
  • These would include regulations or rules made under the authority of a statute by a professional body, a Court, the Legislative Assembly’s Board of Management, or an independent officer of the Legislative Assembly.
  • Proposed regulations made in response to an emergency.
  • Proposed regulations made to respond to a specific event or activity.
  • These would include community plebiscite regulations and temporary prohibition orders under the Liquor Act or the Cannabis Products Act.
  • Proposed regulations made to implement a legally binding agreement, or to facilitate the negotiation of a land claim agreement, including land withdrawal orders.
  • Proposed regulations that are minor or administrative in nature, including those made to correct errors in an existing regulation.Procedures for publishing proposed regulations.

The Minister for the Responsible Department or Agency provides notice to the Committee Chair of the relevant Standing Committee that a proposed regulation is being published. Proposed regulations are published on a website(s) maintained by the GNWT. Departments and Agencies that wish to publish their draft regulations online for public engagement are responsible for ensuring the information appears on a central GNWT webpage.

A proposed regulation must provide contact information for a position (or a general email address) within the Responsible Department or Agency where comments can be directed. Departments and Agencies are responsible for determining the period of public engagement; the public engagement period should be no less than 30 days. A proposed regulation does not need to be published more than once, regardless of whether it is altered after publication. All regulations are published in Part 2 of the Gazette after its enactment.

Finalizing proposed regulations

When finalizing a proposed regulation, all written comments are to be considered, but do not have to be incorporated. Departments and Agencies may provide a rationale for why a suggested change to the proposed regulation was incorporated (or not) into the final regulation, but are not required to do so.

Glossary of Terms

Aboriginal rights

Aboriginal rights

Aboriginal rights protect the existing activities and traditions of all Indigenous peoples in Canada, including the right to use land to hunt, fish, trap, gather plants and for other important ceremonial and social practices. These rights are enshrined in Section 35 of Canada’s Constitution Act, 1982.

Act

Act

A statute, or body of legislation, dedicated to a particular subject that is created and approved by a legislature. In the NWT, a Bill (draft legislation prepared by a Minister and/or Cabinet, sometimes with Indigenous government involvement) becomes an Act (or the actual law) only after it receives third reading by the Legislative Assembly, the NWT Commissioner (similar role to the Lieutenant Governor in the provinces or the Governor General for Canada) assents to it. An Act comes into effect when it is assented to unless there are specific provisions for implementation at another time (for example, specific dates or on order of a Minister or Cabinet). See: Coming into force.

Bill

Bill

A proposed act, or amendment to an act, that is drafted and proposed by a Minister and/or Cabinet.  The development of a Bill may involve Indigenous governments and the public.  Once a Bill has been developed, it is given three readings in the Legislative Assembly where it can be reviewed, referred to a Standing Committee and debated. If the Bill is approved, and then receives assent, it becomes an Act and may come into force immediately or at a later date. See: Coming into force.

Cabinet

Cabinet

The Premier and other Ministers as selected by the NWT Legislative Assembly.  Cabinet is formally known as the Executive Council.  Currently, the Premier assigns portfolios or departmental responsibilities to individual Ministers.

Civil society

Civil society

Civil society refers to organizations like schools or universities, advocacy groups, professional associations, churches, and cultural institutions that are not associated with governments.  Other terms may be used to describe this sector including non-governmental organizations (NGOs).

Co-management

Co-management

This refers to the collaborative way public governments (GNWT and the federal government) and Indigenous government organizations in the Northwest Territories manage lands, waters, and natural resources. Public lands and waters are co-managed through the rules and regulations set out in three main pieces of territorial legislation (Waters Act, Northwest Territories Lands Act, and Commissioner’s Land Act) and one piece of federal legislation (Mackenzie Valley Resource Management Act).  Other arrangement also exist that require Indigenous government involvement in the development and review of resource management legislation and regulations.

Coming into force

Coming into force

The point in time when a Bill passed by the Legislative Assembly or a regulation made by a Minister and/or Cabinet takes effect and becomes law. Many acts come into force after they receive assent and are proclaimed law by the NWT Commissioner. However, some acts don’t come into force until a specific date or when certain regulations necessary for implementation are completed and approved.  Parts or sections of legislation may come into force at different times.

Commissioner’s Land

Commissioner’s Land

The term used to describe public lands owned, managed, and administered by the Government of the Northwest Territories (GNWT) prior to devolution. They are called “Commissioner’s Land” as the Commissioner is the formal head of public government (the role of the Commissioner has evolved and diminished over the last several decades with the development of the territorial government).  Commissioner’s Lands were usually small pockets of lands around communities.  This term will be eliminated once the Public Land Act comes into force and becomes law. All public lands owned, managed, and administered by the GNWT will then be called public lands.

Consensus government

Consensus government

The style of government in the Northwest Territories. There are no political parties and no overall platforms or positions.  The Premier and Cabinet are selected by each Assembly according to its own rules.  All MLAs have the opportunity to provide input on policies, bills, and budgets before these items are presented to the public.

Crown land

Crown land

The term used to describe public lands owned, managed, and administered by the federal government prior to devolution. (When the Public Land Act comes into force and becomes law, all public lands owned, managed, and administered by the GNWT will be called public land.)

Devolution

Devolution

This term generally refers to the transfer of power or authority over certain agreed upon subject matters or jurisdictions such as health care, education, forestry or social services.  In the context of the NWT, devolution began in 1967 with he creation of a separate Government of the Northwest Territories and the transfer of various matters in the 1970s.  There was a specific agreement between Canada and the GNWT that came into force April 1, 2014 to transfer certain authorities for land, water, and resource development management to the GNWT with a clear role for Indigenous governments (at least those ones that have signed on).

Environmental Assessment

Environmental Assessment

An environmental assessment is a comprehensive look at the environmental, social and cultural effects of a development project before there is a decision on whether or not to move forward with it. In the NWT, there are two separate environmental assessment regimes: one for the Inuvialuit Settlement Region and another for the rest of the NWT or the Mackenzie Valley.

Executive Council

Executive Council

The formal name for Cabinet or the Premier and other Ministers of the GNWT as selected by the Members of the Legislative Assembly. See:  Cabinet

Gazette

Gazette

The GNWT Department of Justice’s legislation division prepares the Northwest Territories Gazette, which includes the full text of all regulations and orders, any notices of statutory appointments and revocations, and various governmental and non-governmental notices. The Gazette is published in both English and French. The federal government publishes the Canada Gazette, which includes all new statutes, any new and proposed regulations, as well as administrative board decisions and public notices.

MLA

MLA

A Member of the Legislative Assembly. There are 19 elected MLAs to the territorial legislature. Each NWT MLA is considered an independent member within the consensus government system.  MLAs are there to represent the interests of their constituents and to participate in the making of laws and general government business.  To contact your MLA, you can check these maps and the website of the Legislative Assembly for further information.

Policy

Policy

A statement that represents a commitment to follow an action or course of action in pursuit of approved objectives.  A policy may also be an unwritten way of doing things or deciding on issues.  In the context of GNWT, there are policies that have been approved by individual Ministers and other approved by Cabinet. 

Regular MLA

Regular MLA

The term used to describe a Member of the Legislative Assembly who is not a member of the NWT Cabinet or Executive Council.  The role of Regular MLAs is to hold Cabinet to account for what they do or not do, as well as to represent their constituents and participate in general law-making and debate.

Regulations

Regulations

Regulations are a set of rules, which exist under an act, that provide the specific ways in which the act’s laws are to be interpreted and applied or implemented.  Regulations are found on the Department of Justice website under the appropriate law that provides authority for regulations.  There is no requirement for public engagement on the development of regulations unless this is specified in the enacting legislation.  Public engagement is at the discretion of each Minister or Cabinet and this is becoming more common.  On resource management regulations, there are requirements for Indigenous government involvement  Regular MLAs are not usually engaged in the development of regulations.

Rights and title holders

Rights and title holders

Indigenous peoples in Canada are considered rights and title holders, not just stakeholders. Aboriginal title was first recognized by King George III in the Royal Proclamation of 1763. Still, Indigenous peoples in Canada struggle to have their constitutionally protected rights recognized.

Royalty

Royalty

A payment made to a government by the owner or operator of an extractive industry (for example, petroleum, minerals or gravel), based on the non-renewable nature of the resource. A royalty is not a tax, as the resources being extracted are usually owned by a government.  The right to explore and extract may also be regulated.  This amount of the royalty is based on a formula found within the jurisdiction’s resource legislation or regulations.  It can be based on the value of the resource with deductions for various expenses and investments.  For the NWT, the royalty regime covering petroleum and minerals was set by the federal government and has not been changed in any significant way but is the subject of ongoing review and public debate.

Royalty rate

Royalty rate

The amount an owner or operator of an extractive operation pays to a government (usually on an annual basis).  Royalties may be based on the value of the resource output during a fiscal year—sometimes defined as a percentage of revenue or profit or value of total resource extracted.  The rates and any potential deductions are set in the applicable resource management legislation and/or regulations.

Stakeholder

Stakeholder

Stakeholder is the blanket term used to describe an individual, group, or organization that stands to be affected by the outcome of a development project or a decision to make a law, regulation or policy.  Stakeholders may also be rights holders, with specific rights to be involved in decision-making or as owners of other rights (for example, harvesting of wildlife) that may be affected by decisions.

Subsurface rights

Subsurface rights

This refers to the ownership rights of any minerals, gravel or petroleum resource found below the surface of the land.  In most places in Canada and the NWT, there is a separation between the surface use and ownership, and the exploration and extraction of subsurface resources which can be a source of land use and other conflict.

Traditional Knowledge

Traditional Knowledge

This is Indigenous knowledge or values acquired through experience, observation, from the land, or from spiritual teachings, that are handed down from generation to generation. 

Treaty rights

Treaty rights

Treaty rights are defined in either historic or modern treaty agreements, and are recognized and affirmed by Section 35 of the Constitution Act, 1982. Treaties define specific rights, benefits, and obligations of the signatories, including the federal government. These rights, benefits, and obligations vary from treaty to treaty.

Truth and Reconciliation Commission of Canada (TRC)

Truth and Reconciliation Commission of Canada (TRC)

The Truth and Reconciliation Commission (TRC) of Canada documented the history and legacy of the Indian Residential School system through its final report in 2015 with findings and recommendations.  It provided those directly or indirectly affected by the system with an opportunity to share their stories and experiences.  Recommendations or calls to action were made to a variety of public governments, Indigenous governments and others to continue the process of reconciliation.

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

This is a comprehensive statement that addresses the human rights of the world’s Indigenous peoples. UNDRIP was in development for more than twenty years before it was adopted by the United Nations General Assembly on September 13, 2007.  Canada initially was one of four countries to vote against the adoption of the declaration but removed its objection in 2016.  Since then, Canada has adopted legislation to assist in implementation of the UNDRIP.  The Legislative Assembly of the NWT also passed legislation in 2023 requiring a number of initiatives including an action plan to review GNWT laws, regulations and policies for consistency with UNDRIP.

Your Guide