Nunavut Waters and Nunavut Surface Rights Tribunal Act (S.C. 2002, c. 10)

Conditions of Issuance

Marginal note:Referral to Minister for approval

• 56 (1) The Board’s decision with respect to the issuance, amendment, renewal or cancellation of a type A licence or, if a public hearing is held, a type B licence is to be immediately referred to the Minister for approval.

• Marginal note:Reasons

  (2) Within 45 days after the Minister receives a licence that has been issued, amended or renewed or a notice of cancellation of a licence, the Minister shall make a decision on whether to approve the issuance, amendment, renewal or cancellation of the licence and, if the decision is not to approve, give written reasons for the decision.

• Marginal note:Extension

  (2.1) The Minister may extend the 45 days referred to in subsection (2) for a further consecutive forty five days, for a total of 90 days, by notifying the Board of the extension within the first 45 days.

• Marginal note:Absence of decision

  (2.2) If the Minister does not make a decision within the forty five or ninety days referred to in subsection (2) or (2.1) respectively, whichever is applicable, the Minister is deemed to have approved the issuance, amendment, renewal or cancellation, as the case may be.

• Marginal note:Limitation

  (3) The disagreement of the Minister with the amount of compensation determined under paragraph 63(1)(b) is not sufficient reason for the Minister to withhold approval in respect of a licence for a use of waters or deposit of waste that may substantially affect the quality, quantity or flow of waters flowing through Inuit-owned land.

• Marginal note:Copies of decisions to parties

  (4) The Minister shall send a copy of the Minister’s decision and, in the case of a decision to withhold approval, the reasons for the decision

  • (a) to the Board;

  • (b) to the applicant or licensee;

  • (c) where the affected waters are ones in respect of which section 63 applies, to the designated Inuit organization; and

  • (d) to any other person with a right to compensation under section 58 or 60.

Marginal note:Conditions for issuance of licence

57 The Board may not issue a licence unless the applicant satisfies the Board that

• (a) any waste produced by the appurtenant undertaking will be treated and disposed of in a manner that is appropriate for the maintenance of the water quality standards and effluent standards that are prescribed by the regulations or, in the absence of such regulations, that the Board considers acceptable; and

• (b) the financial responsibility of the applicant, taking into account the applicant’s past performance, is adequate for

  • (i) the completion of the appurtenant undertaking,

  • (ii) such measures as may be required in mitigation of any adverse impact, and

  • (iii) the satisfactory maintenance and restoration of the site in the event of any future closing or abandonment of that undertaking.

Marginal note:Compensation of existing users

58 The Board may not issue a licence unless the applicant, with respect to any person, other than an instream user, who would be entitled to use waters in precedence to the applicant under section 47,

• (a) satisfies the Board that the use of waters or the deposit of waste would have no adverse effects on the use of waters by that person;

• (b) satisfies the Board that any adverse effects caused by the use of waters or the deposit of waste would not be significant, and has paid or undertaken to pay the compensation that the Board considers appropriate to that person; or

• (c) has entered into an agreement to compensate that person for any adverse effects.

Marginal note:Failure to respond

59 In the circumstances described in paragraph 58(b), an applicant need not compensate the person under section 58 if the person fails to respond to the notice of application given under subsection 55(1) within the time period specified in the notice for making representations to the Board.

Marginal note:Compensation of other users

• 60 (1) The Board may not issue a licence unless

  • (a) the applicant satisfies the Board that compensation that the Board considers appropriate has been or will be paid by the applicant to any person who would be adversely affected by the proposed use of waters or deposit of waste and who, at the time the application was filed,

    • (i) used waters for a domestic purpose in the Northwest Territories or in Nunavut,

    • (ii) held a licence that was issued under this Act, the Mackenzie Valley Resource Management Act or a law of the Legislature of the Northwest Territories to deposit waste in the Northwest Territories or in Nunavut,

    • (iii) was an instream user in the Northwest Territories or in Nunavut,

    • (iv) was — as authorized by regulations made under this Act or a law of the Legislature of the Northwest Territories — using waters or depositing waste in the Northwest Territories or in Nunavut without a licence that was issued under this Act, the Mackenzie Valley Resource Management Act or a law of the Legislature of the Northwest Territories,

    • (v) was an owner or an occupier of land in the Northwest Territories or in Nunavut, or

    • (vi) was a holder of an outfitting concession, a registered trapline or other rights of a similar nature in the Northwest Territories or in Nunavut; or

  • (b) the applicant has entered into an agreement to compensate any person described in subparagraphs (a)(i) to (vi) who would be adversely affected.

• Marginal note:Failure to respond

  (2) Subsection (1) does not apply in respect of a person referred to in that subsection who fails to respond to the notice of application given under subsection 55(1) within the time period specified in that notice for making representations to the Board.

• Marginal note:Inuit-owned land

  (3) Where subsection 63(1) applies in respect of adverse effects on any person described in subparagraphs (1)(a)(i) to (vi) that are caused by a use of waters or a deposit of waste that may substantially alter the quality, quantity or flow of waters flowing through Inuit-owned land, subsection (1) does not apply in respect of those effects for which compensation has already been paid, has been agreed to be paid or has been determined by the Board pursuant to subsection 63(1).

Marginal note:Factors in determining compensation

61 In determining whether compensation is appropriate for the purpose of paragraph 58(b) or subsection 60(1), the Board shall consider all relevant factors, including

• (a) provable loss or damage;

• (b) potential loss or damage;

• (c) any adverse effect on the quality, quantity or flow of waters;

• (d) the extent of the use of waters by persons who would be adversely affected;

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

• (f) the cumulative effects of the use of waters or deposits of waste proposed by the applicant and any existing uses of waters and deposits of waste.

Inuit-owned Land

Marginal note:Priority of use

62 In relation to Inuit-owned land, any existing use of waters by Inuit has priority over any licensed use or deposit of waste by any person who has a mineral right.

Marginal note:Compensation agreements

• 63 (1) The Board shall not issue a licence in respect of a use of waters or a deposit of waste that may substantially affect the quality, quantity or flow of waters flowing through Inuit-owned land, unless

  • (a) the applicant has entered into an agreement with the designated Inuit organization to pay compensation for any loss or damage that may be caused by the change; or

  • (b) where there is no agreement referred to in paragraph (a), the Board has, on the request of the applicant or the designated Inuit organization, made a determination of the appropriate compensation.

• Marginal note:Payment of compensation

  (2) The payment of compensation referred to in paragraph (1)(b) shall be a condition of the licence.

• Marginal note:Costs

  (3) Unless otherwise determined by the Board, costs incurred by the designated Inuit organization as a result of a request referred to in paragraph (1)(b) shall be paid by the applicant.

Marginal note:Use outside Nunavut

• 64 (1) On request by the designated Inuit organization or a person who has applied to the water authority responsible for the management of waters outside Nunavut, but within the Northwest Territories, for a licence or other authorization in relation to a use of waters or a deposit of waste that may substantially affect the quality, quantity or flow of waters flowing through Inuit-owned land, the Board shall collaborate with that authority to reach a joint determination on the compensation to be paid.

• Marginal note:Costs

  (2) Unless determined otherwise by the Board, costs incurred by the designated Inuit organization as a result of a request referred to in subsection (1) shall be paid by the applicant.

Marginal note:Interpretation

65 For greater certainty, sections 63 and 64 apply where a body of water delineates a boundary between Inuit-owned land and other land and that body of water is not located entirely on Inuit-owned land.

Marginal note:Negotiation to be in good faith

66 A request referred to in paragraph 63(1)(b) or subsection 64(1) shall not be considered by the Board unless the requester has negotiated in good faith and has been unable to reach an agreement.

Marginal note:Factors in determining compensation

• 67 (1) For the purpose of determining compensation under paragraph 63(1)(b) and subsection 64(1), the Board shall take into account the following factors:

  • (a) the adverse effects of the change in the quality, quantity or flow of waters on Inuit-owned land;

  • (b) the nuisance, inconvenience or disturbance, including noise, caused by the change;

  • (c) the cumulative effects of the change and of any existing uses of waters and deposits of waste;

  • (d) the cultural attachment of Inuit to the affected Inuit-owned land, including waters;

  • (e) the peculiar and special value of the affected Inuit-owned land, including waters; and

  • (f) any interference with Inuit rights derived from the Agreement or otherwise.

• Marginal note:Periodic review and payment

  (2) Unless otherwise agreed by the designated Inuit organization and the applicant, where the Board has made a determination of compensation under paragraph 63(1)(b) or subsection 64(1), the Board shall provide, where the nature and duration of the use or deposit of waste warrant it, for the periodic review and periodic payment of that compensation.

Marginal note:National parks in Nunavut

68 Sections 63 and 65 to 67 apply in respect of a use of waters or a deposit of waste that is within the jurisdiction of the authority responsible for the management of waters in a national park in Nunavut and

• (a) any reference in those provisions, except paragraph 63(1)(b), to the Board is deemed to be a reference to that authority; and

• (b) any reference in section 63 to a licence is deemed to be a reference to an authorization to use waters or deposit waste given by the authority.

Mackenzie Valley

Marginal note:Gwich’in Sahtu lands

69 Where the Board has been notified under subsection 78(1) of the Mackenzie Valley Resource Management Act, it may not issue a licence for a use of waters or deposit of waste referred to in that subsection unless the requirements of subsection 78(3) of that Act are satisfied.

Conditions of Licences

Marginal note:Powers of Board

• 70 (1) Subject to this Act and the regulations, the Board may include in a licence any conditions that it considers appropriate, including conditions relating to

  • (a) the manner in which waters may be used;

  • (b) the quantity, concentration and types of waste that may be deposited and the manner of depositing waste;

  • (c) the studies to be undertaken, works to be constructed, plans, including contingency plans, to be submitted, and monitoring programs to be undertaken; and

  • (d) any future closing or abandonment of the appurtenant undertaking.

• Marginal note:Monitoring programs

  (2) The monitoring programs referred to in paragraph (1)(c) may specify responsibilities of the applicant, the Nunavut Impact Review Board or Her Majesty in right of Canada.

• 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.