7.1 Authorities relating to enforcement, offences and punishments

Issue

There are numerous differences between the Northwest Territories Lands Act and Commissioner’s Land Act relating to enforcement, offences and punishments. The differences create challenges and inconsistences for administration and enforcement. Operational issues are specifically related to:

• appointment and powers of enforcement officers
• punishments for trespass offences
• administrative monetary penalties

Background

The differences between the Northwest Territories Lands Act and Commissioner’s Land Act are summarized below:

• The Northwest Territories Lands Act provides enforcement officers with extensive and detailed powers, as well as limitations on those powers.^[1] The Commissioner’s Land Act does not provide for the same authorities.
• The maximum punishments for the same trespass offences are different in the Northwest Territories Lands Act and Commissioner’s Land Act^.[2]
  • Pursuant to the Northwest Territories Lands Act and Commissioner’s Land Act, it is an offence to remain on public lands after having been ordered to vacate it or after having been removed from it.^[3]
  • Pursuant to the Commissioner’s Land Act, this offence is punishable on summary conviction. The Commissioner’s Land Act does not set out a maximum punishment for this offence.
  • The Northwest Territories Lands Act, which mirrored the 2014 punishments updated in the federal Territorial Lands Act, sets out a punishment if found guilty of trespass for the first offence to a fine not exceeding $100,000 or to imprisonment for a term not exceeding six months, or to both; and for a second or subsequent offence, to a fine not exceeding $200,000 or to imprisonment for a term not exceeding six months, or to both.
• The Northwest Territories Lands Act provides enabling authority, as well as limitations, for regulations respecting administrative monetary penalties.^[4] This authority does not exist in the Commissioner’s Land Act.

Recommended Action

• Propose that the enforcement, offences and punishments provisions from the Northwest Territories Lands Act be included in the Commissioner’s Land Act, including those relating to:
  • appointment and powers of enforcement officers
  • maximum punishments for trespass offences
  • authority for administrative monetary penalties

Rationale

The recommended actions will support consistent, effective, and efficient enforcement for all public lands. 

The recommended action to align enforcement, offences and punishment provisions will create consistency between the Northwest Territories Lands Act and Commissioner’s Land Act, help to discourage unauthorized use of public land and support sustainable land management practices.

Administrative monetary penalties are being widely used across Canada to regulate certain activities and many partners have indicated support for developing an NWT scheme. The federal government is currently working on regulations under the federal Territorial Lands Act, which may provide a model for the NWT. GNWT regulations and supporting policies will need to be developed under the Northwest Territories Lands Act and Commissioner’s Land Act before an administrative monetary penalties regime can be fully implemented.

Updating provisions relating to enforcement, offences and penalties requires further discussion to ensure alignment with compliance and enforcement initiatives across other GNWT legislation.

The recommended action will help to achieve the following goals:

• align provisions in the Northwest Territories Lands Act and Commissioner’s Land Act
• enhance consistency in the application of the Northwest Territories Lands Act and Commissioner’s Land Act
• minimize operational challenges in land administration

7.2 Delegation and enforcement actions

Issue

The Northwest Territories Lands Act and Commissioner’s Land Act require different procedures to initiate enforcement actions for the unauthorized use of public lands. Determining if there is believed to be trespass may be better delegated to an enforcement officer than performed by the Minister. 

Background

The Commissioner’s Land Act provides for the Minister or his or her delegate to “form an opinion” that a person is wrongfully or without lawful authority using, possessing, or occupying Commissioner’s Land.^[5]  

The Northwest Territories Lands Act does not explicitly state that the Minister may delegate the task of forming an opinion that a person is unlawfully using, possessing, or occupying Territorial Lands.^[6] 

Recommended Action

• Propose to clarify the Minister’s authority to delegate enforcement decision-making with respect to unauthorized occupancy of public land.  

Rationale

The recommended action will improve consistency between Northwest Territories Lands Act and Commissioner’s Land Act and will provide authorities at appropriate levels. This will support timely initiation of enforcement for suspected new trespassing on Territorial Lands.

This recommendation will help ensure enforcement actions against unauthorized occupants can be consistently applied in accordance with GNWT policies and guidelines, and all enforcement actions are appropriate for the specific situation being investigated.

The recommended action will help to achieve the following goals:

• align provisions in the Northwest Territories Lands Act and Commissioner’s Land Act
• enhance consistency in the application of the Northwest Territories Lands Act and Commissioner’s Land Act
• ensure legislation reflects current risks, practices and standards
• minimize operational challenges in land administration