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Northern Jobs and Growth Act (S.C. 2013, c. 14)

Assented to 2013-06-19

Consequential Amendments

R.S., c. A-1Access to Information Act

 Schedule I to the Access to Information Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:

  • Nunavut Impact Review Board

    Commission du Nunavut chargée de l’examen des répercussions

  • Nunavut Planning Commission

    Commission d’aménagement du Nunavut

R.S., c. P-21Privacy Act

 The schedule to the Privacy Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:

  • Nunavut Impact Review Board

    Commission du Nunavut chargée de l’examen des répercussions

  • Nunavut Planning Commission

    Commission d’aménagement du Nunavut

2002, c. 10Nunavut Waters and Nunavut Surface Rights Tribunal Act

 The definitions “Nunavut Impact Review Board” and “Nunavut Planning Commission” in section 4 of the Nunavut Waters and Nunavut Surface Rights Tribunal Act are replaced by the following:

“Nunavut Impact Review Board”

« Commission d’examen des projets de développement »

“Nunavut Impact Review Board” means the Nunavut Impact Review Board referred to in section 18 of the Nunavut Planning and Project Assessment Act.

“Nunavut Planning Commission”

« Commission d’aménagement »

“Nunavut Planning Commission” means the Nunavut Planning Commission referred to in section 10 of the Nunavut Planning and Project Assessment Act.

 Subsection 36(2) of the Act is replaced by the following:

  • Marginal note:Review by Nunavut Planning Commission

    (2) In order to avoid unnecessary duplication and to ensure that projects are dealt with in a timely manner, the Board shall cooperate and coordinate its consideration of applications with the Nunavut Planning Commission’s review of projects under sections 76 to 85 of the Nunavut Planning and Project Assessment Act for conformity with any applicable land use plans approved under subsection 55(1) of that Act.

 Subsection 37(1) of the Act is replaced by the following:

Marginal note:Screening and review of projects
  • 37. (1) In order to avoid unnecessary duplication and to ensure that projects are dealt with in a timely manner, the Board shall cooperate and coordinate its consideration of applications with the Nunavut Impact Review Board or any federal environmental assessment panel or joint panel established under subsection 115(1) or paragraph 160(1)(a) or (b) of the Nunavut Planning and Project Assessment Act in relation to the screening of projects by that Board and the review of projects by that Board or panel.

 Sections 38 and 39 of the Act are replaced by the following:

Marginal note:Restriction on powers
  • 38. (1) The Board may not issue, renew or amend a licence to use waters or deposit waste in relation to a use or deposit, or appurtenant undertaking, that is a project within the meaning of subsection 2(1) of the Nunavut Planning and Project Assessment Act if

    • (a) the assessment of the project under Part 3 of that Act has not been completed;

    • (b) the assessment of the project has been terminated under subsection 141(2), 142(2), 143(4) or (6) or 144(3) of that Act;

    • (c) the Nunavut Planning Commission has determined, under section 77 of that Act, that the project is not in conformity with any applicable land use plan, and no minor variance or exemption has been granted in respect of the project under paragraph 81(2)(a) or 82(2)(a) of that Act, as the case may be;

    • (d) the responsible Minister, within the meaning of subsection 73(1) of that Act, has decided that the project could be modified and an amended project proposal submitted to the Nunavut Planning Commission, or that it is not to proceed; or

    • (e) the responsible authority, within the meaning of section 163 of that Act, has determined, under section 165 of that Act, that the project is not in conformity with the requirements set out by or under any law for which it has responsibility.

  • Marginal note:Exception

    (2) Despite paragraph (1)(a), the Board may issue, renew or amend a licence in relation to exploration or developmental activities referred to in subsection 154(1) of the Nunavut Planning and Project Assessment Act or exploration or development activities referred to in paragraph 155(1)(a) or (b) of that Act.

  • Marginal note:Non-renewal, etc.

    (3) Licences issued under subsection (2) must not be renewed or amended if the responsible Minister, as defined in subsection 73(1) of the Nunavut Planning and Project Assessment Act, has come to a decision under Part 3 of that Act that the project to which the activities in question relate either is not to proceed or could be modified and an amended project proposal submitted to the Commission or the responsible authority within the meaning of section 163 of that Act, as the case may be.

 Subsection 70(3) of the Act is replaced by the following:

  • Marginal note:Terms and Conditions

    (3) The Board shall, to the extent of its jurisdiction and authority under this Act to do so, incorporate the terms and conditions referred to in subsection 136(1) of the Nunavut Planning and Project Assessment Act in a licence that is issued in respect of the use of waters or deposit of waste or the appurtenant undertaking to which that use or deposit relates.

Coming into Force

Marginal note:Order in council

 This Part comes into force on a day to be fixed by order of the Governor in Council.

PART 2NORTHWEST TERRITORIES SURFACE RIGHTS BOARD ACT

Enactment of Act

Marginal note:Enactment

 The Northwest Territories Surface Rights Board Act is enacted as follows:

An Act to establish the Northwest Territories Surface Rights Board and to make related and consequential amendments to other Acts

Preamble

Whereas the Gwich’in, Sahtu, Inuvialuit and Tlicho Agreements allow for the establishment by legislation of a regime for the determination of terms and conditions of access to Gwich’in lands, Sahtu lands and Tlicho lands, and the waters overlying those lands, and Inuvialuit lands, as well as the compensation to be paid in respect of that access;

Whereas, in addition, it is appropriate to establish a regime for the determination of terms and conditions of access to other land in the Northwest Territories and the compensation to be paid in respect of that access;

And whereas it is appropriate to establish, in accordance with the Agreements, a surface rights board as an institution of public government, whose purpose is to resolve matters in dispute relating to terms and conditions of access to lands and waters, primarily for a commercial purpose, and the compensation to be paid in respect of that access;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Marginal note:Short title

1. This Act may be cited as the Northwest Territories Surface Rights Board Act.

INTERPRETATION

Marginal note:Definitions
  • 2. (1) The following definitions apply in this Act.

    “access order”

    « ordonnance d’accès »

    “access order” means an order made under any of sections 49 to 54, 62, 69 and 77.

    “Agreement”

    « accord »

    “Agreement” means the Gwich’in Agreement, the Inuvialuit Agreement, the Sahtu Agreement or the Tlicho Agreement, as the case may be.

    “designated land”

    « terres désignées »

    “designated land” means Gwich’in lands, Inuvialuit lands or Sahtu lands, as the case may be.

    “designated organization”

    « organisation désignée »

    “designated organization” means the Gwich’in Tribal Council, the Inuvialuit Regional Corporation or the designated Sahtu organization, as the case may be.

    “entity”

    « entité »

    “entity” includes a corporation, a partnership, association or any other unincorporated organization, an Aboriginal group or government, the Government of Canada, the Government of the Northwest Territories, and a department or agency of one of those governments.

    “gas”

    « gaz »

    “gas” means natural gas and includes all substances, other than oil, that are produced in association with natural gas.

    “Gwich’in Agreement”

    « accord gwichin »

    “Gwich’in Agreement” means the Comprehensive Land Claim Agreement between Her Majesty the Queen in right of Canada and the Gwich’in as represented by the Gwich’in Tribal Council, signed on April 22, 1992 and approved, given effect and declared valid by the Gwich’in Land Claim Settlement Act, as that Agreement is amended from time to time in accordance with its provisions.

    “Inuvialuit Agreement”

    « accord inuvialuit »

    “Inuvialuit Agreement” means the Inuvialuit Final Agreement between the Committee for Original Peoples’ Entitlement representing the Inuvialuit of the Inuvialuit Settlement Region, within the meaning of that Agreement, and the Government of Canada, signed on June 5, 1984 and approved, given effect and declared valid by the Western Arctic (Inuvialuit) Claims Settlement Act, as that Agreement is amended from time to time in accordance with its provisions.

    “Inuvialuit lands”

    « terres inuvialuites »

    “Inuvialuit lands” means land in the Northwest Territories that has been provided to the Inuvialuit under the Inuvialuit Agreement.

    “minerals”

    « minéraux »

    “minerals” means

    • (a) precious and base metals; and

    • (b) any other non-living, naturally occurring substances, whether solid, liquid or gaseous, including coal, oil and gas but not water.

    “Minister”

    « ministre »

    “Minister” means the Minister of Indian Affairs and Northern Development.

    “non-designated land”

    « terres non désignées »

    “non-designated land” means land in the Northwest Territories that is not designated land or Tlicho lands that is either owned by an individual or entity or owned by Her Majesty in right of Canada and occupied by an individual or entity. For greater certainty, it includes

    • (a) the lands described in 20.1.3(a) and (b) of the Gwich’in Agreement and in 21.1.3(a) and (b) of the Sahtu Agreement and Tlicho community lands; and

    • (b) lands under the administration and control of the Commissioner of the Northwest Territories that are occupied by an individual or entity.

    “occupant”

    « occupant »

    “occupant” means, in respect of land, an individual or entity, other than the owner, whose consent is required under another Act of Parliament for the exercise of a right of access to the land by an individual or entity having a right to explore for, develop or produce minerals.

    “oil”

    « pétrole »

    “oil” means

    • (a) crude oil, regardless of gravity, produced at a well head in liquid form; and

    • (b) any other hydrocarbons, other than coal and gas, including hydrocarbons that may be extracted or recovered from deposits of oil sand, bituminous sand or oil shale or from any other type of deposits on the surface or subsurface.

    “regulatory authority”

    « autorité administrative »

    “regulatory authority” means a minister, a department or agency, a municipality, the Tlicho government, a Tlicho community government or any public body responsible — under another Act of Parliament, a territorial law or a Tlicho law — for issuing a licence, permit or other authorization.

    “Sahtu Agreement”

    « accord du Sahtu »

    “Sahtu Agreement” means the Comprehensive Land Claim Agreement between Her Majesty the Queen in right of Canada and the Sahtu Dene and Metis as represented by the Sahtu Tribal Council, signed on September 6, 1993 and approved, given effect and declared valid by the Sahtu Dene and Metis Land Claim Settlement Act, as that Agreement is amended from time to time in accordance with its provisions.

    “settlement area”

    « région désignée »

    “settlement area” means, as the case may be,

    • (a) the area described in appendix A to the Gwich’in Agreement;

    • (b) the portion of the Inuvialuit Settlement Region, as defined in section 2 of the Inuvialuit Agreement, that is located in the Northwest Territories; or

    • (c) the area described in appendix A to the Sahtu Agreement.

    “territorial law”

    « loi territoriale »

    “territorial law” means an ordinance of the Northwest Territories and any regulations made under an ordinance.

    “Tlicho Agreement”

    « accord tlicho »

    “Tlicho Agreement” means the Land Claims and Self-Government Agreement among the Tlicho, the Government of the Northwest Territories and the Government of Canada, signed on August 25, 2003 and approved, given effect and declared valid by the Tlicho Land Claims and Self-Government Act, as that Agreement is amended from time to time in accordance with its provisions.

    “wildlife”

    « ressources fauniques »

    “wildlife” means fauna living in a wild state, including fish, mammals and birds. It does not include reindeer.

  • Marginal note:Definitions — Agreements

    (2) In this Act,

    • (a“Gwich’in lands” has the same meaning as in 20.1.1 of the Gwich’in Agreement and “Gwich’in participant” means a participant as defined in 2.1.1 of that Agreement;

    • (b“Inuvialuit” means the people referred to in the definition “Inuvialuit” in section 2 of the Inuvialuit Agreement;

    • (c“designated Sahtu organization” and “Sahtu lands” have the same meaning as in 2.1.1 and 21.1.1, respectively, of the Sahtu Agreement and “Sahtu participant” means a participant as defined in 2.1.1 of that Agreement; and

    • (d“Monfwi Gogha De Niitlee”, “Tlicho Citizen”, “Tlicho community”, “Tlicho community lands”,“Tlicho First Nation”, “Tlicho Government”, “Tlicho lands” and “Tlicho law” have the same meaning as in 1.1.1 of the Tlicho Agreement.

PRECEDENCE

Marginal note:Agreement prevails

3. In the event of any inconsistency or conflict between an Agreement and this Act, the Agreement prevails to the extent of the inconsistency or conflict.

APPLICATION

Marginal note:Geographical application

4. This Act applies to the Northwest Territories.

Marginal note:Binding on Her Majesty

5. This Act is binding on Her Majesty in right of Canada or a province.

GENERAL PROVISIONS

Marginal note:Delegation

6. The Minister may delegate, in writing, any of the Minister’s powers or functions under this Act — either generally or as otherwise provided in the instrument of delegation — to the minister of the Northwest Territories designated by the Commissioner of the Northwest Territories for the purposes of this section.

Marginal note:Review
  • 7. (1) The Minister must review this Act with the representatives of any Aboriginal group that has entered into an agreement in relation to the Northwest Territories to determine whether this Act should be amended to implement any provision of the agreement if the agreement

    • (a) is a comprehensive land claim agreement, a self-government agreement, an agreement regarding the management and regulation of land and resources or governance, a transboundary agreement or a type of agreement that is specified in the regulations; and

    • (b) comes into force, in accordance with its provisions, either before or after the day on which this section comes into force.

  • Marginal note:Limitation

    (2) For greater certainty, subsection (1) does not apply in respect of an agreement that is not final or an Agreement as defined in subsection 2(1).

Marginal note:Access subject to consent
  • 8. (1) For greater certainty, unless otherwise provided in an Agreement or under this Act, an individual or entity is not permitted to enter, cross or remain on Gwich’in lands, Sahtu lands or Tlicho lands, or the waters overlying those lands, or Inuvialuit lands, without the consent of the applicable designated organization or the Tlicho Government, as the case may be.

  • Marginal note:Exceptions

    (2) Subsection (1) does not apply to Gwich’in participants, Sahtu participants or Tlicho Citizens, in relation to Gwich’in lands, Sahtu lands or Tlicho lands, respectively, or to the waters overlying those lands, or to the Inuvialuit in relation to Inuvialuit lands.

  • Marginal note:Effect of order

    (3) Neither the issuance of an order by the Northwest Territories Surface Rights Board nor any provision of such an order has the effect of exempting the individual or entity to whom the order is issued from any obligation, restriction or prohibition set out in an Agreement or imposed under an Act of Parliament or a territorial law.

ESTABLISHMENT AND ORGANIZATION OF THE NORTHWEST TERRITORIES SURFACE RIGHTS BOARD

Board Established

Marginal note:Establishment
  • 9. (1) A board is established, to be known as the Northwest Territories Surface Rights Board, in this Act referred to as the “Board”.

  • Marginal note:Composition

    (2) The Board is to consist of no fewer than five and no more than nine members, including the Chairperson.

  • Marginal note:Appointment by Minister

    (3) The Chairperson and the other members of the Board are to be appointed by the Minister.

  • Marginal note:Odd number

    (4) The Minister must make any appointments that are necessary to ensure that an odd number of members holds office at any time.

Marginal note:Purpose
  • 10. (1) The purpose of the Board is to resolve matters in dispute relating to access to Gwich’in lands, Sahtu lands and Tlicho lands, and the waters overlying those lands, and Inuvialuit lands and non-designated land.

  • Marginal note:Jurisdiction generally

    (2) To fulfil its purpose, the Board may, in accordance with this Act, make orders setting out the terms and conditions on which an individual or entity may access those lands and waters and the appropriate compensation to be paid in respect of the access.

Marginal note:Chairperson
  • 11. (1) The Chairperson is the chief executive officer of the Board and exercises the powers and performs the functions set out in the Board’s bylaws.

  • Marginal note:Acting Chairperson

    (2) The Board must designate a member who is to act as Chairperson in the event that the Chairperson is absent or becomes incapacitated or if their office becomes vacant.

Marginal note:Alternate members
  • 12. (1) The Minister must appoint five alternate members.

  • Marginal note:Absence or incapacity

    (2) If a member is absent or incapacitated or if their office is vacant, the alternate member who is subject to the same residency requirements as that member must perform the functions normally performed by that member, subject to the Board’s bylaws or, in the absence of an applicable provision in the bylaws, the direction of the Chairperson, and in doing so, is deemed to be a member.

Marginal note:Qualifications and residency requirements
  • 13. (1) The Minister must appoint as members and alternate members individuals who, in the Minister’s opinion, have knowledge or experience that will assist the Board in fulfilling its purpose and who are residents of the Northwest Territories.

  • Marginal note:Aboriginal traditional knowledge

    (2) For greater certainty, the knowledge and experience referred to in subsection (1) includes Aboriginal traditional knowledge and experience in relation to that knowledge.

  • Marginal note:Additional requirement — residency

    (3) Among the individuals appointed as members and alternate members, at least one member and one alternate member must be residents of

    • (a) the area described in appendix A to the Gwich’in Agreement;

    • (b) Inuvik or the portion of the Inuvialuit Settlement Region, as defined in section 2 of the Inuvialuit Agreement, that is located in the Northwest Territories;

    • (c) the area described in appendix A to the Sahtu Agreement; and

    • (d) the Monfwi Gogha De Niitlee.

  • Marginal note:Additional requirement — knowledge

    (4) Each individual appointed as a member or alternate member referred to in any of paragraphs (3)(a) to (d) must have, in the Minister’s opinion, considerable knowledge in respect of lands, the environment or Aboriginal traditional knowledge in relation to the applicable settlement area or the Monfwi Gogha De Niitlee, as the case may be.

Marginal note:Change of residence
  • 14. (1) A member or alternate member who is of the opinion that they have ceased to meet the applicable residency requirements must advise the Minister and the Board without delay.

  • Marginal note:Notification

    (2) If the Minister determines that a member or alternate member has ceased to meet the applicable residency requirements — regardless of whether the Minister has been so advised under subsection (1) — the Minister must send written notification to that member and their appointment is terminated as of the day on which the member receives the written notification or the day on which they are deemed to have received it, which is 30 days after it is sent, whichever is earlier.

  • Marginal note:Acting after ceasing to be resident

    (3) If a member ceases to meet the applicable residency requirements before they have made a decision in a matter for which a hearing is held, the member may, with the consent of the parties to the hearing, continue to perform their functions as a member only in relation to that matter until the hearing is concluded and a decision is made. For the purpose of the appointment of a replacement, their office is deemed to be vacant as soon as their appointment is terminated under subsection (2).

Marginal note:Term of office
  • 15. (1) Members and alternate members are appointed to hold office for a term of five years.

  • Marginal note:Acting after expiry of term

    (2) If the term of a member expires before they have made a decision in a matter for which a hearing is held, the member may, in accordance with the Board’s bylaws or, in the absence of an applicable provision in the bylaws, the direction of the Chairperson, continue to perform their functions as a member only in relation to that matter until the hearing is concluded and a decision is made. For the purpose of the appointment of a replacement, their office is deemed to be vacant as soon as their term expires.

Marginal note:Removal

16. Members and alternate members hold office during good behaviour and may be removed by the Minister for cause.

Marginal note:Reappointment

17. Members and alternate members are eligible to be reappointed to the Board for a second term in the same or in another capacity, but they are not, in the three years following the completion of their second consecutive term, eligible for appointment in any capacity.

Marginal note:Remuneration and expenses — members
  • 18. (1) Members — including the Chairperson — are to receive the remuneration that is determined by the Minister for the performance of their functions and are to be paid the travel and living expenses incurred by them while they are absent from their ordinary place of residence in the course of performing their functions that are consistent with Treasury Board directives for public servants.

  • Marginal note:Alternate members

    (2) Alternate members are not entitled to receive any remuneration unless they attend a meeting, training session or other event at the request of the Chairperson, in which case they are to receive the remuneration that is determined by the Minister, and are to be paid the travel and living expenses incurred by them while they are absent from their ordinary place of residence that are consistent with Treasury Board directives for public servants.

Marginal note:Staff

19. The Board may employ any employees and engage the services of any agents, advisers and experts that are necessary for the proper conduct of its business and may fix the terms and conditions of their employment or engagement and pay their remuneration.

Marginal note:Workers’ compensation

20. Members, alternate members who attend meetings, training sessions or other events at the request of the Chairperson and employees of the Board are deemed to be employees for the purposes of the Government Employees Compensation Act and to be employed in the federal public administration for the purposes of any regulations made under section 9 of the Aeronautics Act.

Marginal note:Conflict of interest
  • 21. (1) A member, employee of the Board, agent, adviser or expert must not perform their functions if doing so would place them in a conflict of interest.

  • Marginal note:Status or entitlement under Agreement

    (2) An individual is not placed in a conflict of interest solely because of any status or entitlement conferred on them under an Agreement or because they have an interest in land in the Northwest Territories.

Marginal note:Acts done in good faith

22. No action lies against a member or an employee of the Board for anything done or omitted to be done in good faith in the performance, or purported performance, of any function under this Act.

Head Office and Meetings

Marginal note:Head office

23. The head office of the Board is to be at Yellowknife or at any other location in the Northwest Territories that the Governor in Council designates.

Marginal note:Meetings
  • 24. (1) The meetings of the Board may be held at the times and in the locations in the Northwest Territories that the Board considers necessary or desirable for the proper conduct of its business.

  • Marginal note:Participation by telephone or other means of communication

    (2) Subject to the Board’s bylaws or, in the absence of an applicable provision in the bylaws, the direction of the Chairperson, a member may participate in a meeting by any means of communication — including by telephone — that permits all participants to communicate with one another, and a member so participating is deemed for the purposes of this Act to be present at the meeting.

Bylaws

Marginal note:Powers of Board

25. The Board may make bylaws respecting the powers and functions of the Chairperson and the conduct and management of its internal administrative affairs, including bylaws respecting

  • (a) the circumstances in which an alternate member is to perform the functions of a member who is absent or incapacitated or whose office is vacant;

  • (b) in the case of a member whose term has expired, their ability to continue to perform their functions in relation to a matter for which a hearing is held;

  • (c) participation in meetings of the Board by means of telephone or other means of communication;

  • (d) the assignment of members to panels of the Board; and

  • (e) the designation of individuals who are authorized to certify copies of documents issued by the Board.

Status and General Powers

Marginal note:Status

26. The Board is an institution of public government but is not an agent of Her Majesty.

Marginal note:Property and contracts
  • 27. (1) The Board may, for the purposes of conducting its business,

    • (a) acquire property in its own name and dispose of the property; and

    • (b) enter into contracts in its own name.

  • Marginal note:Legal proceedings

    (2) Actions, suits or other legal proceedings in respect of any right or obligation acquired or incurred by the Board may be brought or taken by or against the Board in its name in any court that would have jurisdiction if the Board were a corporation.

Marginal note:Government services and facilities

28. In order to conduct its business effectively and efficiently, the Board may, with consent, use the services and facilities of departments, boards and agencies of the Government of Canada or the Government of the Northwest Territories located in the Northwest Territories and share services and facilities with those departments, boards and agencies.

Marginal note:Obtaining information
  • 29. (1) Subject to any other Act of Parliament, territorial law or Tlicho law, the Board may obtain from any department, board or agency of the Government of Canada or the Government of the Northwest Territories or from the Tlicho Government any information in the possession of the department, board or agency or the Tlicho Government that the Board requires to exercise its powers or perform its functions.

  • Marginal note:Use of information

    (2) Members, alternate members, employees of the Board, agents, advisers and experts are prohibited from using any information received under this Act for any purpose other than performing their functions under this Act.

Languages

Marginal note:Language of business

30. The Board must conduct its business in both of the official languages of Canada in accordance with the Official Languages Act and any directives of the Minister.

Financial Provisions

Marginal note:Annual budget
  • 31. (1) The Board must submit, annually, a budget for the following fiscal year to the Minister for review.

  • Marginal note:Approval or variation

    (2) On completion of the review, the Minister may approve or vary the budget.

  • Marginal note:Accounts

    (3) The Board must maintain books of account and related records in accordance with accounting principles recommended by the Canadian Institute of Chartered Accountants or its successor.

  • Marginal note:Consolidated financial statements

    (4) The Board must, within the time after the end of each fiscal year that the Minister specifies, prepare consolidated financial statements in respect of that fiscal year in accordance with those accounting principles and must include in those statements any documents or information required in support of them.

  • Marginal note:Audit

    (5) The auditor of the Board must audit the accounts, financial statements and financial transactions of the Board annually and must make a report of the audit to the Board and to the Minister.

Annual Report

Marginal note:Submission to Minister and content

32. The Board must, within three months after the end of each fiscal year, submit to the Minister a report on its activities in that year. The annual report must include information on

  • (a) the Board’s operations;

  • (b) the number of applications for orders made to the Board;

  • (c) the orders made by the Board; and

  • (d) any other matter that the Minister specifies.

APPLICATIONS AND HEARINGS

Jurisdiction of the Board

Marginal note:Negotiations
  • 33. (1) Subject to subsection (2), the Board is not authorized to consider an application for an order unless, in accordance with rules made under paragraph 94(a), the applicant has attempted in good faith to resolve the matter in dispute by negotiation and is unable to bring about a resolution of the dispute within a reasonable period.

  • Marginal note:Tlicho lands

    (2) In the case of an application in respect of Tlicho lands, the Board is not authorized to consider the application unless the applicant has attempted in good faith to resolve the matter in dispute by mediation in accordance with 6.4 of the Tlicho Agreement and is unable to bring about a resolution of the dispute.

Marginal note:Resolved matters
  • 34. (1) The Board is not authorized to make an order in respect of a matter that was resolved by negotiation or mediation unless the parties consent or the Board determines, after reviewing evidence submitted by one of the parties, that there has been a material change in the facts or circumstances that formed the basis of the negotiated or mediated resolution.

  • Marginal note:For greater certainty

    (2) For greater certainty, subsection (1) does not have the effect of preventing the Board from performing its functions under any of sections 55, 58, 70 and 73.

Marginal note:Matters not raised

35. The Board is not authorized to make an order in respect of a matter that is not raised by either of the parties.

Hearings

Marginal note:Rules of evidence

36. The Board must deal with an application for, or a review of, an order as informally and expeditiously as considerations of fairness and the circumstances permit. In particular, the Board

  • (a) is not bound by any legal or technical rules of evidence; and

  • (b) must take into account any material that it considers relevant, including Aboriginal traditional knowledge.

Marginal note:General powers of Board

37. The Board has — with respect to the attendance and examination of witnesses, the production and inspection of documents and all other matters necessary or proper in relation to applications for, or reviews of, orders — all the powers, rights and privileges of a superior court.

Marginal note:Reference

38. The Board may, at any stage of its proceedings, refer to the Supreme Court of the Northwest Territories any question or issue of law or jurisdiction, other than a question or issue that has been referred to an arbitration panel established under an Agreement.

Marginal note:Parties to hearing

39. The following are parties to a hearing before the Board:

  • (a) in the case of an application for an access order,

    • (i) the individual or entity who requires access to or across designated land or Tlicho lands or access to non-designated land, and

    • (ii) in relation to designated land, the applicable designated organization, in relation to Tlicho lands, the Tlicho Government or, in relation to non-designated land, the owner or occupant of the land to which the application relates;

  • (b) in the case of an application for an access order relating to an existing right,

    • (i) the holder of the existing right, and

    • (ii) the applicable designated organization or the Tlicho Government, as the case may be;

  • (c) in the case of an application for an order for compensation in relation to the provision of a public utility,

    • (i) the entity authorized to provide a public utility, and

    • (ii) the applicable designated organization or the Tlicho Government, as the case may be; and

  • (d) in the case of an application for an order for compensation for unforeseen damage,

    • (i) the individual or entity to whom the access order was issued, and

    • (ii) in relation to designated land or Tlicho lands, the applicable designated organization or the Tlicho Government, or, in relation to non-designated land, the owner or occupant to whom compensation is payable.

Marginal note:Absence of party

40. The Board is not authorized to hold a hearing in respect of an application for, or a review of, an order in the absence of a party unless that party consents to the holding of the hearing in their absence or was given notice of the hearing in accordance with rules made under paragraph 94(b).

Marginal note:Location of hearing

41. Unless the Board decides otherwise, an application must be heard or a review must be conducted,

  • (a) in relation to designated land, in a community that is located in the applicable settlement area;

  • (b) in relation to Tlicho lands, in a community that is located in the Monfwi Gogha De Niitlee; and

  • (c) in relation to non-designated land, in the community in the Northwest Territories that is closest to that land.

Panels

Marginal note:Composition

42. An application for an order that the Board, in accordance with section 33, is authorized to consider must be heard or a review must be conducted, by a panel of three members or, if the parties consent, by a panel of one member.

Marginal note:Assignment of members

43. Subject to section 44, members are to be assigned to panels in accordance with the Board’s bylaws or, in the absence of an applicable provision in the bylaws, the direction of the Chairperson.

Marginal note:Residency and knowledge requirements
  • 44. (1) If an application for, or a review of, an order deals with Gwich’in lands, Sahtu lands or Tlicho lands or lands described in 20.1.3(a) or (b) of the Gwich’in Agreement or in 21.1.3(a) or (b) of the Sahtu Agreement, the following conditions must be met:

    • (a) at least one member of the panel must have been appointed by the Minister for reasons that include their being a resident of the applicable settlement area or the Monfwi Gogha De Niitlee, as the case may be, and having the knowledge required under subsection 13(4) in relation to the area in which they are required to reside; and

    • (b) the lands to which the application or review relates are located in the area in which the member referred to in paragraph (a) is required to reside.

  • Marginal note:Inuvialuit lands

    (2) If an application for, or a review of, an order deals with Inuvialuit lands, the following conditions must be met:

    • (a) at least one member of the panel must have been appointed by the Minister for reasons that include their meeting the residency requirement set out in paragraph 13(3)(b) and having the knowledge required under subsection 13(4) in relation to the settlement area; and

    • (b) the lands to which the application or review relates are located in the settlement area.

Marginal note:Absence of panel members
  • 45. (1) If one or two members of a three-member panel are absent, a hearing may, with the consent of the parties, continue with one member of the panel — selected, if one member is absent, in accordance with the Board’s bylaws or, in the absence of an applicable provision in the bylaws, the direction of the Chairperson — who, in the case of an application or a review in respect of lands referred to in section 44, meets the residency and knowledge conditions referred to in that section.

  • Marginal note:New hearing

    (2) If a party does not consent, the application must be reheard, or the review conducted, by another panel.

  • Marginal note:Disposition

    (3) A member of a panel who is not present during the entire hearing is not authorized to participate in the disposition of the application or review unless the parties consent.

Marginal note:Information made available

46. Before making an order or a decision in respect of the review of an order, a panel must make any information that it intends to use available to the parties and provide them with a reasonable opportunity to respond to the information.

Marginal note:Powers and functions
  • 47. (1) A panel has all of the powers, and performs all of the functions, of the Board in relation to an application for, or a review of, an order.

  • Marginal note:Status of order

    (2) An order of a panel is an order of the Board.

ORDERS IN RELATION TO DESIGNATED LAND AND TLICHO LANDS

Access Orders

Required Documents

Marginal note:Copy of agreement or offer

48. An application for an access order must be accompanied by

  • (a) a copy of any agreement concluded between the parties regarding terms and conditions of access; and

  • (b) a copy of any agreement concluded between the parties regarding compensation to be paid in respect of the access or, in the absence of such an agreement, a copy of the most recent written offer of compensation, if any, made to the applicable designated organization or the Tlicho Government, as the case may be.

Obligation of Board To Make Access Orders

Definition of “explore for”

  • 49. (1) In this section, “explore for”, in respect of minerals, includes prospecting for minerals and locating claims only if those activities

    • (a) are conducted on or under Gwich’in lands described in 18.1.2(a) of the Gwich’in Agreement and require a land use permit under another Act of Parliament; or

    • (b) are conducted on or under Sahtu lands described in 19.1.2(a) of the Sahtu Agreement and require a land use permit or a water licence under another Act of Parliament.

  • Marginal note:Minerals — Gwich’in or Sahtu lands

    (2) The Board must, on application, make an order setting out the terms and conditions on which an individual or entity may access Gwich’in lands or Sahtu lands, and the waters overlying those lands, to exercise, on or under those lands, a right to explore for, develop or produce minerals — granted under another Act of Parliament — or to transport minerals under such a right, if the individual or entity has been unable to obtain the consent of the Gwich’in Tribal Council or the designated Sahtu organization, as the case may be, as well as the compensation to be paid in respect of that access.

Marginal note:Access across — Gwich’in, Sahtu or Tlicho lands
  • 50. (1) The Board must, on application, make an order setting out the terms and conditions on which an individual or entity may have access across Gwich’in lands, Sahtu lands or Tlicho lands, and the waters overlying those lands, to reach adjacent lands or waters for a commercial purpose, as well as the compensation to be paid in respect of that access, if

    • (a) the Board is satisfied that the individual or entity reasonably requires such access; and

    • (b) the access is subject to the consent of the Gwich’in Tribal Council, the designated Sahtu organization or the Tlicho Government, as the case may be, and the individual or entity has been unable to obtain that consent.

  • Marginal note:Consent

    (2) The access is subject to consent unless

    • (a) the individual or entity has a right of access because

      • (i) the access is of a casual and insignificant nature and prior notice is given to the Gwich’in Tribal Council, the designated Sahtu organization or the Tlicho Government, as the case may be,

      • (ii) in relation to Gwich’in lands and Sahtu lands, the route is recognized and is being used to reach adjacent lands or waters for a commercial purpose on a regular basis — whether year-round or intermittently — and was being so used before the date of land withdrawal following land selection or, if there was no land withdrawal, the date of transfer of the land, and the access does not significantly alter the use of that route, or

      • (iii) in relation to Tlicho lands, the route is being used to reach adjacent lands or waters for a commercial purpose on a regular basis, whether year-round or intermittently, and the access does not significantly alter the use of that route;

    • (b) except if otherwise provided in an agreement with the Gwich’in Tribal Council, the designated Sahtu organization or the Tlicho Government, the individual or entity exercises their right of access in such a manner that

      • (i) no significant damage is caused to Gwich’in lands, Sahtu lands or Tlicho lands, as the case may be,

      • (ii) no mischief is committed on the lands, and

      • (iii) there is no significant interference with the use and peaceful enjoyment of Gwich’in lands by Gwich’in participants, Sahtu lands by Sahtu participants or Tlicho lands by Tlicho Citizens or the Tlicho First Nation, as the case may be; and

    • (c) the individual or entity exercises their right of access in accordance with any additional terms and conditions established, by agreement or in accordance with the applicable dispute resolution mechanism, under 20.1.7 of the Gwich’in Agreement, 21.1.7 of the Sahtu Agreement or 19.1.9 of the Tlicho Agreement.

  • Marginal note:Suitable route

    (3) The access order must include terms and conditions to ensure that access across the lands and waters is by a suitable route that is the least harmful to Gwich’in participants, to Sahtu participants or to Tlicho Citizens and the Tlicho First Nation, as the case may be.

Marginal note:Access across — Inuvialuit lands
  • 51. (1) The Board must, on application, make an order setting out the terms and conditions on which an individual or entity may have access across Inuvialuit lands to reach lands that are not Inuvialuit lands for a commercial purpose in order to exercise rights, as well as the compensation to be paid in respect of that access, if

    • (a) the access will be significant, but temporary; and

    • (b) the individual or entity has been unable to conclude a right of way agreement with the Inuvialuit Regional Corporation.

  • Marginal note:Suitable route

    (2) The access order must include terms and conditions to ensure that the exercise of the right of access is by a route that is both the least harmful to the Inuvialuit and suitable to the individual or entity who will exercise the right.

  • Marginal note:Damage and loss of use

    (3) The access order must include terms and conditions respecting damage to Inuvialuit lands — and mitigation of that damage and restoration of those lands — and any loss of use of those lands by the Inuvialuit.

  • Marginal note:Mandatory content of order

    (4) The access order must provide that

    • (a) the Inuvialuit and the entities referred to in the definition “Inuvialuit” in section 2 of the Inuvialuit Agreement are not responsible for any damage suffered by the individual or entity to whom the access order is issued by reason only that the damage was suffered in the exercise of the right of access;

    • (b) the individual or entity to whom the access order is issued is responsible for any damage caused to Inuvialuit lands as a result of the exercise of the right of access; and

    • (c) failure to comply with the terms and conditions in the access order could lead to the individual or entity to whom the access order is issued being removed from Inuvialuit lands.

Marginal note:Definitions
  • 52. (1) The following definitions apply in this section.

    “navigable waterways”

    « voie navigable »

    “navigable waterways” means any portion of a navigable river overlying Gwich’in lands, Sahtu lands or Tlicho lands and other navigable bodies of water overlying those lands that can be entered from a navigable river.

    “portages”

    « portage »

    “portages” means routes on Gwich’in lands, Sahtu lands or Tlicho lands for carrying boats and goods between navigable waterways.

    “waterfront lands”

    « terre riveraine »

    “waterfront lands” means the 30.48 metre wide area of Gwich’in lands or Sahtu lands, or the 31 metre wide area of Tlicho lands, measured inland from the limit or edge of the bed, as defined in 2.1.1 of the Gwich’in Agreement, 2.1.1 of the Sahtu Agreement or 1.1.1 of the Tlicho Agreement, of a navigable waterway.

  • Marginal note:Travel by water — Gwich’in, Sahtu or Tlicho lands

    (2) The Board must, on application, make an order setting out the terms and conditions on which an individual or entity may access navigable waterways, waterfront lands and portages for travel by water in the course of conducting a commercial activity — as well as the compensation to be paid in respect of that access — if the access is subject to the consent of the Gwich’in Tribal Council, the designated Sahtu organization or the Tlicho Government, as the case may be, and the individual or entity has been unable to obtain that consent.

  • Marginal note:Consent

    (3) The access is subject to consent unless

    • (a) the individual or entity has a right of access because

      • (i) the most direct route is used,

      • (ii) the use of waterfront lands and portages is minimized, and

      • (iii) in the case of access to waterfront lands and portages, prior notice is given to the Gwich’in Tribal Council, the designated Sahtu organization or the Tlicho Government, as the case may be;

    • (b) except if otherwise provided in an agreement with the Gwich’in Tribal Council, the designated Sahtu organization or the Tlicho Government, the individual or entity exercises their right of access in such a manner that

      • (i) no significant damage is caused to Gwich’in lands, Sahtu lands or Tlicho lands, as the case may be,

      • (ii) no mischief is committed on the lands, and

      • (iii) there is no significant interference with the use and peaceful enjoyment of Gwich’in lands by Gwich’in participants, Sahtu lands by Sahtu participants or Tlicho lands by Tlicho Citizens or the Tlicho First Nation, as the case may be;

    • (c) in the case of access to waterfront lands and portages, the individual or entity exercises their right of access

      • (i) without establishing any permanent or seasonal camps or structures on the waterfront lands or portages,

      • (ii) in a manner that does not cause any significant alteration to the waterfront lands or portages, and

      • (iii) without conducting any commercial activity on the waterfront lands or portages, other than commercial activity that is necessarily incidental to travel; and

    • (d) the individual or entity exercises their right of access in accordance with any additional terms and conditions established, by agreement or in accordance with the applicable dispute resolution mechanism, under 20.1.7 of the Gwich’in Agreement, 21.1.7 of the Sahtu Agreement or 19.1.9 of the Tlicho Agreement.

Definition of “existing right”

  • 53. (1) In this section, “existing right” means

    • (a) a right — held as of either the date of land withdrawal following land selection or, if there was no land withdrawal, the date of transfer of the land — to use or operate on lands which became Gwich’in lands or Sahtu lands, and on the waters overlying those lands, including a land use permit, licence or other right of access to or across those lands and waters; and

    • (b) any associated benefits and privileges, including any renewals, replacements and transfers that may have been granted or permitted had the lands not become Gwich’in lands or Sahtu lands and the ability of employees and clients of the holder of a right referred to in paragraph (a) to exercise any rights that are necessary to permit the existing right-holder to continue to use or operate on Gwich’in lands or Sahtu lands, and the waters overlying those lands.

  • Marginal note:Existing right — Gwich’in or Sahtu lands

    (2) The Board must, on application, make an order setting out the terms and conditions on which an individual or entity may access Gwich’in lands or Sahtu lands, and the waters overlying those lands, to exercise an existing right that has been amended under another Act of Parliament or a territorial law — as well as the compensation to be paid in respect of that access — if the individual or entity has been unable to obtain the consent of the Gwich’in Tribal Council or the designated Sahtu organization, as the case may be.

  • Marginal note:Exception

    (3) For the purpose of subsection (2), an amendment to an existing right does not include a renewal, replacement, extension of term or transfer of the existing right.

Definition of “existing right”

  • 54. (1) In this section, “existing right” means a right of access to Tlicho lands, and the waters overlying those lands, exercised by the holder of

    • (a) an interest in an excluded parcel listed in part 1 of the appendix to chapter 18 of the Tlicho Agreement or an interest listed in part 2 of that appendix, including a renewal or replacement; or

    • (b) a land use permit granted by the Mackenzie Valley Land and Water Board before the day on which the Tlicho Land Claims and Self-Government Act came into force.

  • Marginal note:Existing right — Tlicho lands

    (2) The Board must, on application, make an order setting out the terms and conditions on which an individual or entity may access Tlicho lands, and the waters overlying those lands, for the purpose of exercising an existing right that involves a location or an activity not authorized as of the day on which the Tlicho Land Claims and Self-Government Act came into force — as well as the compensation to be paid in respect of that access — if the individual or entity has been unable to obtain the consent of the Tlicho Government.

Terms and Conditions

Marginal note:Terms and conditions agreed to by parties

55. If the parties to a hearing have concluded an agreement regarding terms and conditions of access, the Board must include those terms and conditions in the access order.

Marginal note:Terms and conditions determined by Board
  • 56. (1) In addition to the terms and conditions of access in an agreement concluded by the parties, if any, and the terms and conditions of access required by this Act, the Board may include in an access order

    • (a) terms and conditions respecting any of the following matters:

      • (i) the times when the right of access may be exercised,

      • (ii) the giving of notice,

      • (iii) the location in which the right of access may be exercised and the routes of access,

      • (iv) the number of individuals who may exercise the right of access,

      • (v) the activities that may be carried on and the equipment that may be used,

      • (vi) abandonment and restoration work, and

      • (vii) the right of a designated organization, the Tlicho Government or an individual or entity occupying the land to verify, by inspection or otherwise, whether the other terms and conditions of the access order and any applicable conditions established by an Agreement have been complied with; and

    • (b) any other terms and conditions that the Board considers appropriate to minimize any damage to the land or interference with the use and peaceful enjoyment of the land by Gwich’in participants, the Inuvialuit, Sahtu participants, Tlicho Citizens or the Tlicho First Nation, as the case may be.

  • Marginal note:Limitation — security

    (2) The Board is not authorized to include as a term or condition in an access order the posting of security.

Marginal note:Inconsistent terms and conditions

57. In the event of any inconsistency, the following terms and conditions prevail over any terms and conditions included in an access order, to the extent of the inconsistency:

  • (a) terms and conditions that are set out in a licence, permit or other authorization issued by a regulatory authority in relation to the land or waters in respect of which the access order is made; and

  • (b) in relation to Gwich’in lands or Sahtu lands, and the waters overlying those lands, conditions in respect of a proposal for a development that are approved under Part 5 of the Mackenzie Valley Resource Management Act.

Compensation

Marginal note:Compensation agreed to by parties
  • 58. (1) If the parties to a hearing have concluded an agreement regarding the compensation to be paid in respect of access, the Board must set out the amount of that compensation in the access order.

  • Marginal note:Manner of payment

    (2) If provided for in the agreement, the Board must also set out the manner of payment of the compensation in the access order.

Marginal note:Compensation determined by Board
  • 59. (1) If the parties to a hearing have not concluded an agreement regarding the compensation to be paid in respect of access, the Board must determine the amount of the compensation and, in so doing, must consider all relevant factors, including

    • (a) the market value of the land in question on the day on which the application for an order is received by the Board;

    • (b) any loss of use of the land to Gwich’in participants, the Inuvialuit, Sahtu participants or Tlicho Citizens, as the case may be;

    • (c) any effect on wildlife harvesting;

    • (d) any damage that may be caused to the land;

    • (e) any nuisance or inconvenience, including noise;

    • (f) the cultural attachment to the land of Gwich’in participants, the Inuvialuit, Sahtu participants or the Tlicho First Nation, as the case may be;

    • (g) the peculiar or special value of the land to Gwich’in participants, the Inuvialuit, Sahtu participants or the Tlicho First Nation, as the case may be;

    • (h) any adverse effect on other Gwich’in lands, Inuvialuit lands, Sahtu lands or Tlicho lands; and

    • (i) any reasonable expenses that may be incurred by a designated organization, the Tlicho Government or an individual or entity occupying the land on account of the costs of an inspection referred to in subparagraph 56(1)(a)(vii).

  • Marginal note:Limitation

    (2) In determining the amount of compensation, the Board is not authorized to consider the reversionary value of the land or any access fee payable.

  • Definition of “harvesting”

    (3) In paragraph (1)(c), “harvesting” means gathering, hunting, trapping or fishing.

Marginal note:Manner of payment

60. If the parties to a hearing have not concluded an agreement regarding the manner of payment of the compensation to be paid in respect of access, the Board may require compensation to be paid by one lump sum payment or by annual or other periodic payments of equal or different amounts and may require the payment of interest, at a rate determined in accordance with the regulations, on compensation payments made after the day on which they are required to be made.

Payment Before Exercise of Right of Access

Marginal note:Access fee and amount for exercise of right of access

61. An individual or entity to whom an access order is issued is not permitted to exercise the right of access provided for in the order until after payment to the applicable designated organization or the Tlicho Government, as the case may be, of any access fee fixed by the regulations and

  • (a) if the parties have concluded an agreement regarding the compensation to be paid in respect of access, the amount that, under the agreement, must be paid before the right of access may be exercised or, if no such amount is specified, 80% of the total amount of compensation that the parties have agreed to;

  • (b) if the parties have not concluded an agreement regarding compensation, 80% of the total amount of compensation referred to in the most recent written offer of compensation made to the designated organization or the Tlicho Government, as the case may be; or

  • (c) if the parties have not concluded an agreement regarding compensation and there is no written offer of compensation, the amount that is determined by the Board and set out in the order.

Interim Access Orders

Marginal note:If compensation not determined
  • 62. (1) Pending the determination of the amount of compensation to be paid in respect of access, the Board may make an interim access order that sets out the terms and conditions of access.

  • Marginal note:Hearing and access order

    (2) Within 30 days after making an interim access order, the Board must hold a hearing to determine the amount of compensation to be paid in respect of access and revoke the interim access order and replace it with an access order that sets out the amount of compensation and the terms and conditions of access.

  • Marginal note:Continued authority

    (3) Any failure of the Board to make an access order within the period set out in subsection (2) does not terminate the Board’s authority or invalidate the interim access order or an access order made after the expiry of that period.

Other Orders

Marginal note:Required documents

63. An application for an order under section 64 or 65 must be accompanied by a copy of the most recent written offer of compensation, if any, made to the applicable designated organization or the Tlicho Government, as the case may be.

Definition of “public utility”

  • 64. (1) In this section, “public utility” means the provision of electrical power, telecommunications services or similar utilities to the public by an entity authorized under another Act of Parliament or a territorial law. For greater certainty, “public utility” does not include the transmission of hydrocarbons by pipelines.

  • Marginal note:Public utilities

    (2) The Board must, on application, make an order setting out the amount of compensation that an entity authorized to provide a public utility is required to pay to Gwich’in participants, Sahtu participants, the Tlicho Government or Tlicho Citizens, as the case may be, for damage to Gwich’in lands, Sahtu lands or Tlicho lands, or for interference with the use and peaceful enjoyment of Gwich’in lands by Gwich’in participants, Sahtu lands by Sahtu participants or Tlicho lands by Tlicho Citizens or the Tlicho First Nation, as the case may be, if

    • (a) the damage or interference results from the entity’s exercise of their right of access to Gwich’in lands, Sahtu lands or Tlicho lands to carry out assessments, surveys or studies in relation to a proposed public utility; and

    • (b) the entity and the Gwich’in Tribal Council, the designated Sahtu organization or the Tlicho Government, as the case may be, have been unable to agree on the amount of compensation.

Marginal note:Unforeseen damage

65. If compensation is payable to a designated organization or the Tlicho Government under an access order of the Board, including one that is no longer in effect, the Board must, on application by the designated organization or the Tlicho Government, make an order setting out the amount of additional compensation to be paid to the designated organization or the Tlicho Government, as the case may be, for any damage that was caused to designated land or Tlicho lands — as a result of the exercise of a right of access referred to in the access order — and that was unforeseen at the time that order was made.

Marginal note:Factors to be considered
  • 66. (1) In determining the amount of compensation to be paid for the purpose of an order made under section 64 or 65, the Board must consider all relevant factors, including those listed in paragraphs 59(1)(a) to (i).

  • Marginal note:Limitation

    (2) In determining the amount of compensation, the Board is not authorized to consider the reversionary value of the land or any access fee payable.

Marginal note:Manner of payment

67. The Board may require compensation to be paid by one lump sum payment or by annual or other periodic payments of equal or different amounts and may require the payment of interest, at a rate determined in accordance with the regulations, on compensation payments made after the day on which they are required to be made.

ORDERS IN RELATION TO NON-DESIGNATED LAND

Access Orders

Required Documents

Marginal note:Copy of agreement or offer

68. An application for an access order must be accompanied by

  • (a) a copy of any agreement concluded between the parties regarding terms and conditions of access; and

  • (b) a copy of any agreement concluded between the parties regarding compensation to be paid in respect of the access or, in the absence of such an agreement, a copy of the most recent written offer of compensation, if any, made to the owner or occupant of the land to which the application relates.

Obligation of Board To Make Access Orders

Marginal note:Minerals
  • 69. (1) The Board must, on application, make an order setting out the terms and conditions on which an individual or entity may access non-designated land to exercise, on or under that land, a right to explore for, develop or produce minerals — granted under another Act of Parliament — or to transport minerals under such a right, if the individual or entity has been unable to obtain the consent of the owner or occupant, as the case may be, as well as the compensation to be paid in respect of that access.

  • Marginal note:Oil and gas leases

    (2) Subsection (1) does not apply to an application for an order relating to any of the oil and gas leases numbered 703, 704, 705, 707-R, 708-R, 709-R, 710-R and 838, issued under the Canada Oil and Gas Land Regulations.

Terms and Conditions

Marginal note:Terms and conditions agreed to by parties

70. If the parties to a hearing have concluded an agreement regarding terms and conditions of access, the Board must include those terms and conditions in the access order.

Marginal note:Terms and conditions determined by Board
  • 71. (1) In addition to the terms and conditions of access in an agreement concluded by the parties, if any, and the terms and conditions of access required by this Act, the Board may include in an access order

    • (a) terms and conditions respecting any of the following matters:

      • (i) the times when the right of access may be exercised,

      • (ii) the giving of notice,

      • (iii) the location in which the right of access may be exercised and the routes of access,

      • (iv) the number of individuals who may exercise the right of access,

      • (v) the activities that may be carried on and the equipment that may be used,

      • (vi) abandonment and restoration work, and

      • (vii) the right of the owner or occupant of the land to verify, by inspection or otherwise, whether the other terms and conditions of the access order have been complied with; and

    • (b) any other terms and conditions that the Board considers appropriate to minimize any damage to the land or interference with the use and peaceful enjoyment of the land by the owner or occupant of the land.

  • Marginal note:Limitation — security

    (2) The Board is not authorized to include as a term or condition in an access order the posting of security.

Marginal note:Inconsistent terms and conditions

72. In the event of any inconsistency, terms and conditions in a licence, permit or other authorization issued by a regulatory authority in relation to the land in respect of which an access order is made prevail over any terms and conditions included in the access order, to the extent of the inconsistency.

Compensation

Marginal note:Compensation agreed to by parties
  • 73. (1) If the parties to a hearing have concluded an agreement regarding the compensation to be paid in respect of access, the Board must set out the amount of that compensation in the access order.

  • Marginal note:Manner of payment

    (2) If provided for in the agreement, the Board must also set out the manner of payment of the compensation in the access order.

Marginal note:Compensation determined by Board
  • 74. (1) If the parties to a hearing have not concluded an agreement regarding the compensation to be paid in respect of access, the Board must determine the amount of the compensation and, in so doing, must consider all relevant factors, including

    • (a) the market value of the land in question on the day on which the application for an order is received by the Board;

    • (b) any loss of use of the land to its owner or occupant;

    • (c) any damage that may be caused to the land;

    • (d) any nuisance or inconvenience, including noise;

    • (e) any adverse effect on other lands belonging to the owner of the land or occupied by the occupant of the land; and

    • (f) any reasonable expenses that may be incurred by the owner or occupant of the land on account of the costs of an inspection referred to in subparagraph 71(1)(a)(vii).

  • Marginal note:Additional factors

    (2) In the case of lands described in 20.1.3(a) or (b) of the Gwich’in Agreement or in 21.1.3(a) or (b) of the Sahtu Agreement, the Board must also consider

    • (a) any effect on wildlife harvesting;

    • (b) the cultural attachment to the land of Gwich’in participants or Sahtu participants, as the case may be; and

    • (c) the peculiar or special value of the land to Gwich’in participants or Sahtu participants, as the case may be.

  • Marginal note:Limitation

    (3) In determining the amount of compensation, the Board is not authorized to consider the reversionary value of the land.

  • Definition of “harvesting”

    (4) In paragraph (2)(a), “harvesting” means gathering, hunting, trapping or fishing.

Marginal note:Manner of payment

75. If the parties to a hearing have not concluded an agreement regarding the manner of payment of the compensation to be paid in respect of access, the Board may require compensation to be paid by one lump sum payment or by annual or other periodic payments of equal or different amounts and may require the payment of interest, at a rate determined in accordance with the regulations, on compensation payments made after the day on which they are required to be made.

Payment Before Exercise of Right of Access

Marginal note:Amount for exercise of right of access
  • 76. (1) An individual or entity to whom an access order is issued is not permitted to exercise the right of access provided for in the order until after payment to the owner or occupant, as the case may be, of

    • (a) if the parties have concluded an agreement regarding the compensation to be paid in respect of access, the amount that, under the agreement, must be paid before the right of access may be exercised or, if no such amount is specified, 80% of the total amount of compensation that the parties have agreed to;

    • (b) if the parties have not concluded an agreement regarding compensation, 80% of the total amount of compensation referred to in the most recent written offer of compensation made to the owner or occupant of the land to which the order applies, as the case may be; or

    • (c) if the parties have not concluded an agreement regarding compensation and there is no written offer of compensation, the amount that is determined by the Board and set out in the order.

  • Marginal note:Access fee

    (2) In addition, in the case of lands described in 20.1.3(a) or (b) of the Gwich’in Agreement or in 21.1.3(a) or (b) of the Sahtu Agreement, the individual or entity to whom the access order is issued is not permitted to exercise the right of access provided for in the order until after payment to the applicable designated organization of any access fee fixed by the regulations.

Interim Access Orders

Marginal note:If compensation not determined
  • 77. (1) Pending the determination of the amount of compensation to be paid in respect of access, the Board may make an interim access order that sets out the terms and conditions of access.

  • Marginal note:Hearing and access order

    (2) Within 30 days after making an interim access order, the Board must hold a hearing to determine the amount of compensation to be paid in respect of access and revoke the interim access order and replace it with an access order that sets out the amount of compensation and the terms and conditions of access.

  • Marginal note:Continued authority

    (3) Any failure of the Board to make an access order within the period set out in subsection (2) does not terminate the Board’s authority or invalidate the interim access order or an access order made after the expiry of that period.

Other Orders

Marginal note:Required documents

78. An application for an order under section 79 must be accompanied by a copy of the most recent written offer of compensation, if any, made to the owner or occupant, as the case may be.

Marginal note:Unforeseen damage

79. If compensation is payable to an owner or occupant under an access order of the Board, including one that is no longer in effect, the Board must, on application by the owner or occupant, make an order setting out the amount of additional compensation to be paid to the owner or occupant, as the case may be, for any damage that was caused to the non-designated land — as a result of the exercise of a right of access referred to in the access order — and that was unforeseen at the time that order was made.

Marginal note:Factors to be considered
  • 80. (1) In determining the amount of compensation to be paid for the purpose of an order made under section 79, the Board must consider all relevant factors, including those listed in paragraphs 74(1)(a) to (e).

  • Marginal note:Additional factors

    (2) In the case of lands described in 20.1.3(a) or (b) of the Gwich’in Agreement or in 21.1.3(a) or (b) of the Sahtu Agreement, the Board must also consider the factors listed in paragraphs 74(2)(a) to (c).

  • Marginal note:Limitation

    (3) In determining the amount of compensation, the Board is not authorized to consider the reversionary value of the land or any access fee payable.

Marginal note:Manner of payment

81. The Board may require compensation to be paid by one lump sum payment or by annual or other periodic payments of equal or different amounts and may require the payment of interest, at a rate determined in accordance with the regulations, on compensation payments made after the day on which they are required to be made.

GENERAL

Orders and Decisions of the Board

Marginal note:Costs

82. The Board may, by order, award costs on or before the final disposition of a matter, in accordance with the rules made under section 95 or, in the absence of any such rules, in its discretion.

Marginal note:Reasons

83. The Board must give written reasons for

  • (a) any decision to refuse to consider an application for an order;

  • (b) any order that it makes, including an interim access order and an amended order;

  • (c) any decision not to make or amend an order; and

  • (d) any decision to terminate, or not to terminate, an order.

Marginal note:Final and binding

84. Subject to sections 89 to 92, an order of the Board and any decision made by the Board in respect of an application for, or a review of, an order is final and binding and is not subject to appeal to, or review by, any court.

Marginal note:Copies

85. The Board must, as soon as feasible, provide copies of any order or decision referred to in section 83 to the parties and any applicable regulatory authority.

Marginal note:Proof of orders

86. A document that appears to be an order of the Board, or a document that appears to be certified by the Chairperson or any other individual authorized by the Board’s bylaws as a true copy of an order, is evidence of the making of the order and of its contents, without proof of the signature or official character of the individual appearing to have signed the order or certified the copy.

Marginal note:Successors

87. An order of the Board is binding on, and the rights and obligations under it extend to, any individual or entity that subsequently acquires the ownership of, or other interest or right in, the land to which the order applies and, in the case of an access order, any individual or entity that subsequently acquires the right of access and the right for which that right was acquired.

Marginal note:Enforcement of orders

88. An order of the Board may be made an order of the Supreme Court of the Northwest Territories by the filing of a certified copy of it in the office of the clerk of the court and the order, when so made, is enforceable in the same manner as an order of that court.

Review of Access Orders

Marginal note:Review on application
  • 89. (1) The Board must, on application by a party to a hearing or any of the party’s successors, review in its entirety an access order it made in respect of that hearing if it appears, in the Board’s opinion, that there has been a material change in the facts or circumstances relating to the order.

  • Marginal note:Amendment of access order

    (2) On completion of its review of an access order, the Board must make any amendments to the order that it considers appropriate if it determines that there has been a material change in the facts or circumstances relating to the order that would justify amending it.

  • Marginal note:Restriction

    (3) The Board may only amend an access order in a way that is not likely to cause significant damage to designated land, Tlicho lands or non-designated land or to significantly interfere with the use and peaceful enjoyment of those lands by Gwich’in participants, the Inuvialuit, Sahtu participants, Tlicho Citizens or the Tlicho First Nation or the owner or occupant of non-designated land, as the case may be.

Marginal note:Five-year review
  • 90. (1) The Board must review in its entirety any access order it has made on the expiry of each five-year period after the day on which the Board made the order or the day on which it made a decision on completion of its most recent review, as the case may be, unless the parties waive the requirement for a review or are deemed, under subsection (3), to have waived that requirement.

  • Marginal note:Notice

    (2) The Board must, at least 90 days before the expiry of each five-year period, notify, in writing, the parties and any of their successors who have notified the Board of the succession that the Board intends to review the order and the parties may, at least 30 days before the expiry of that five-year period, make written representations to the Board.

  • Marginal note:Deemed waiver

    (3) A party who does not make written representations to the Board within the required period is deemed to have waived the requirement for a review.

  • Marginal note:Amendment of access order

    (4) On completion of its review of an access order, the Board must make any amendments to the order that it considers appropriate if it determines that there has been a material change in the facts or circumstances relating to the order that would justify amending it.

  • Marginal note:Restriction

    (5) The Board may only amend an access order in a way that is not likely to cause significant damage to designated land, Tlicho lands or non-designated land or to significantly interfere with the use and peaceful enjoyment of those lands by Gwich’in participants, the Inuvialuit, Sahtu participants, Tlicho Citizens or the Tlicho First Nation or the owner or occupant of non-designated land, as the case may be.

Termination of Access Orders

Marginal note:Application by party
  • 91. (1) The Board must, on application by a party to a hearing or any of the party’s successors, terminate an access order it made in respect of that hearing if the Board determines that

    • (a) the holder of the right of access is no longer exercising that right for the purpose for which the order was made; or

    • (b) the conditions that would have permitted the holder of the right of access to exercise that right without consent are now met.

  • Marginal note:Hearing

    (2) The Board may only terminate an access order after it has held a hearing during which the parties may make representations with respect to the termination.

Marginal note:Application by parties

92. The Board must, on application by the parties to a hearing or their successors, terminate an access order if the parties have concluded an agreement governing the terms and conditions of access to the lands in question and waters overlying those lands, as well as the compensation to be paid in respect of that access and wish that access be governed by the agreement rather than the order.

Jurisdiction of the Supreme Court of the Northwest Territories

Marginal note:Exclusive jurisdiction

93. Despite section 18 of the Federal Courts Act, the Supreme Court of the Northwest Territories has exclusive original jurisdiction to hear and determine an application for relief against the Board — by way of an injunction or declaration or by way of an order in the nature of certiorari, mandamus, quo warranto or prohibition — by the Attorney General of Canada, the Attorney General of the Northwest Territories or any individual or entity directly affected by the matter in respect of which relief is sought.

Rules of the Board

Marginal note:Mandatory rules

94. The Board must make rules — consistent with the Agreements — respecting

  • (a) the conduct of negotiations for the purposes of subsection 33(1);

  • (b) practice and procedure in relation to applications for orders and reviews and to hearings in respect of applications and reviews, including the service of documents and the imposition of reasonable time limits;

  • (c) the determination of whether any information relating to an application for, or a review of, an order is confidential, personal, business proprietary or privileged, or whether any Aboriginal traditional knowledge is to be treated as confidential; and

  • (d) the measures to be taken to prevent disclosure of the information or knowledge referred to in paragraph (c), including holding hearings in private.

Marginal note:Other rules

95. The Board may make rules respecting any other matter, including the allowance of costs, such as rules

  • (a) establishing a schedule of fees and other expenses incurred by a party that may be allowed as part of that party’s costs; and

  • (b) respecting the circumstances under which the Board may allow costs on a basis other than that established by the schedule.

Marginal note:Statutory Instruments Act

96. Sections 3, 5 and 11 of the Statutory Instruments Act do not apply in respect of the rules of the Board.

Marginal note:Notice of proposed rule
  • 97. (1) The Board must give notice of any proposed rule by

    • (a) publishing the proposed rule on its Internet site and in a newspaper that, in the Board’s opinion, has a large circulation in the Northwest Territories;

    • (b) providing the proposed rule to the Minister, the minister of the Northwest Territories designated by the Commissioner of the Northwest Territories for the purposes of this paragraph, designated organizations and the Tlicho government; and

    • (c) providing the proposed rule to the individuals and entities that have given written notice to the Board of their interest in receiving a copy of any proposed rule.

  • Marginal note:Representations invited

    (2) The notice must include an invitation to any interested individual or entity to make representations in writing to the Board about the proposed rule within 60 days after the notice is published or communicated, as the case may be.

  • Marginal note:Representations to be considered

    (3) The Board must consider any written representation that it receives within the required period and make any amendment to the proposed rule that it considers appropriate.

  • Marginal note:Exception

    (4) Once notice is given under subsection (1), no further notice is required in respect of any amendment to the proposed rule that results from any representations made.

  • Marginal note:Publication of rule

    (5) As soon as feasible after the rule is made, the Board must

    • (a) publish it on its Internet site and in a newspaper that, in the Board’s opinion, has a large circulation in the Northwest Territories; and

    • (b) publish a notice in the Canada Gazette that the rule has been made, indicating the newspaper in which it has been published.

Public Registry

Marginal note:Contents
  • 98. (1) The Board must maintain a public registry on its Internet site. The Board must include the following in that registry:

    • (a) a list of its members and alternate members;

    • (b) all bylaws made under section 25;

    • (c) the annual report referred to in section 32;

    • (d) all applications for orders or reviews made to the Board — including all documents submitted in support of an application — and all orders and decisions referred to in section 83; and

    • (e) all rules made under sections 94 and 95.

  • Marginal note:Public inspection

    (2) The documents referred to in subsection (1) must also be available for public inspection at the Board’s head office, in accordance with any conditions that may be prescribed by regulation.

  • Marginal note:Limitation on disclosure

    (3) For greater certainty, the information or knowledge referred to in paragraph 94(c) that is determined to be confidential, personal, business proprietary or privileged or that is to be treated as confidential, as the case may be, must not be included in the public registry.

Regulations

Marginal note:Regulations

99. The Governor in Council may make regulations

  • (a) specifying types of agreements for the purpose of section 7;

  • (b) defining “resident” for the purposes of subsection 12(2) or 13(1) or (3), section 14 or 44 or subsection 45(1), as the case may be;

  • (c) specifying what constitutes a conflict of interest for the purpose of section 21;

  • (d) fixing, for the purposes of sections 60, 67, 75 and 81, a rate of interest, or the manner of determining the rate of interest, that may be payable on compensation payments made after the day on which they are required to be made;

  • (e) fixing the amount, or the manner of determining the amount, of an access fee for the purposes of section 61 and subsection 76(2);

  • (f) establishing conditions under which documents may be inspected by the public under subsection 98(2); and

  • (g) generally, for carrying out the purposes and provisions of this Act.

TRANSITIONAL PROVISIONS

Marginal note:Request for arbitration already made

100. This Act does not apply to any matter that is, before the day on which section 8 comes into force, the subject of a submission to arbitration, as referred to in 6.3.2 of the Gwich’in Agreement and 6.3.2 of the Sahtu Agreement, or a request for arbitration, as referred to in 6.5.1 of the Tlicho Agreement.

Marginal note:Inuvialuit Agreement

101. This Act does not apply to any matter that is, before the day on which section 8 comes into force, the subject of a notice of arbitration, as referred to in subsection 18(16) of the Inuvialuit Agreement, and, for greater certainty, section 18 of the Inuvialuit Agreement continues to apply to such a matter.

 
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