Yukon Surface Rights Board Act (S.C. 1994, c. 43)

Reports

Marginal note:Special reports

24 On request of the Minister, the Board shall report to the Minister on

• (a) the operations of the Board;

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

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

• (d) such other matters as the Minister may specify.

Marginal note:Annual report

• 25 (1) The Board shall, within three months after the end of each fiscal year, submit to the Minister a report on the activities of the Board in that year.

• Marginal note:Publication

  (2) The Board shall publish the annual report.

Jurisdiction of the Board

Marginal note:Negotiations

• 26 (1) No person may apply to the Board for an order unless the person has attempted to resolve the matter in dispute by negotiation in accordance with the rules made under paragraph 39(1)(a) or, until such rules have been made, in a manner satisfactory to the Board.

• Marginal note:Resolved matters

  (2) The Board may not hear or make an order in respect of any matter that was resolved by negotiation unless the parties consent thereto or it appears that there has been a material change in the facts or circumstances that formed the basis of the negotiated resolution.

• Marginal note:Matters not raised

  (3) The Board may not make an order in respect of a matter that is not raised by any of the parties.

Applications and Hearings

Marginal note:Informal and expeditious

27 An application before the Board shall be dealt with as informally and expeditiously as the circumstances and considerations of fairness permit.

Marginal note:General powers of Board

28 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 before the Board, all the powers, rights and privileges of a superior court.

Marginal note:Parties to a hearing

29 The following are parties to a hearing before the Board:

• (a) the applicant and any other person who may apply for an order in respect of which the hearing is held;

• (b) where settlement land is in issue, the Yukon first nation and any affected interest holder;

• (c) in the case of an application for an order under section 47, the Minister and Territorial Minister;

• (d) in the case of an application for an order under section 55 where Ministers are notified under paragraph 57(2)(a), the Ministers;

• (e) in the case of an application for an order under section 60, the Government for whose benefit the reservation was made; and

• (f) in the case of an application under section 65 in relation to a mineral right granted under the Yukon Placer Mining Act or the Yukon Quartz Mining Act, the mining recorder.

Marginal note:Hearing in absence of party

30 The Board may not hear an application in the absence of any party unless that party consents to the holding of the hearing in their absence or notice of the hearing was given to that party in accordance with the rules of the Board or, in the absence of rules respecting the giving of such notice, in a manner satisfactory to the Board.

Marginal note:Location of hearing — settlement land

• 31 (1) An application in respect of settlement land shall be heard in the traditional territory of the Yukon first nation whose settlement land is involved, unless the parties agree otherwise.

• Marginal note:Location of hearing — non-settlement land

  (2) An application in respect of non-settlement land shall be heard in the community in Canada closest to the land, whether within or outside the Yukon Territory, unless the parties agree otherwise.

Marginal note:Panels

• 32 (1) An application to the Board shall be heard and decided by a panel consisting of three members of the Board.

• Marginal note:Nomination by Council

  (2) At least one member of any panel hearing an application in respect of settlement land must be a member nominated by the Council for Yukon Indians.

• Marginal note:Single member

  (3) Notwithstanding subsections (1) and (2), an application may, with the consent of the parties, be heard and decided by a panel consisting of one member of the Board, whether or not nominated by the Council for Yukon Indians.

Marginal note:Assignment of members

• 33 (1) Members shall be assigned to panels in accordance with the by-laws of the Board or, in the absence of by-laws respecting the assignment of members to panels, by the Chairperson.

• Marginal note:Conflict of interest

  (2) A member shall not be assigned to, or continue on, a panel if doing so would place the member in a material conflict of interest.

Marginal note:Powers, duties and functions of panel

• 34 (1) A panel has all of the powers, and shall perform all of the duties and functions, of the Board in relation to an application before the panel.

• Marginal note:Status of order of panel

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

Marginal note:Continuation of hearing

• 35 (1) Where a member of a panel dies, resigns or for any other reason is absent during all or part of a hearing, the remaining member or members may, with the consent of the parties, continue the hearing.

• Marginal note:Disposition of application

  (2) A member of a panel who is not present during the entire hearing of an application may not participate in the disposition of the application.

Marginal note:Information made available

36 Before disposing of an application, the Board shall make any information that it intends to use in the disposition available to the parties and provide them a reasonable opportunity to respond to the information.

Marginal note:References to Supreme Court

37 The Board may, at any stage of its proceedings, refer any question or issue of law or of jurisdiction, other than a question or issue that has been referred to arbitration pursuant to a final agreement or the Transboundary Agreement, to the Supreme Court of the Yukon Territory.

Records

Marginal note:Records

38 The Board shall

• (a) keep a public record of all applications made to the Board and orders and other decisions made by the Board in respect of applications;

• (b) issue, on request and payment of such fee as the Board may fix, certified copies of any order or other decision, rule or by-law made by the Board; and

• (c) have the custody and care of all documents filed with the Board.

Rules

Marginal note:Negotiation and entry fee

• 39 (1) The Board shall make rules

  • (a) establishing procedures to be followed in the conduct of negotiations for the purposes of section 26, either generally or with respect to any particular application or class of applications; and

  • (b) establishing the amount of the entry fee that may be provided for by the Board in an access order made under subsection 42(1).

• Marginal note:Parameter of entry fee

  (2) In making a rule pursuant to paragraph (1)(b), the Board shall not establish more than one amount in respect of the entry fee, to be applicable in all cases.

Marginal note:Procedures, mediation and costs

40 The Board may make rules

• (a) respecting the practice and procedure in relation to applications to and hearings before the Board, including the service of documents and the imposition of reasonable time limits;

• (b) establishing procedures that may be followed in the mediation of matters in dispute; and

• (c) respecting the allowance of costs, including rules

  • (i) establishing a schedule of fees and other expenses incurred by a party in relation to applications to or hearings before the Board that may be allowed as part of that party’s costs under section 68, and

  • (ii) respecting the circumstances under which the Board may allow costs with respect to matters dealt with in the schedule of fees and other expenses on a basis other than that established by the schedule.

Marginal note:Publication of proposed rules

• 41 (1) At least thirty days before making a rule, the Board shall give notice of the proposed rule in the Canada Gazette and in a periodical that, in the opinion of the Board, has a large circulation in the Yukon and shall, in the notice, invite interested persons to make representations in writing to it with respect to the rule within thirty days after publication.

• Marginal note:Exception

  (2) Notice of a proposed rule need not be published more than once pursuant to subsection (1), whether or not the rule is amended after the publication as a result of representations made to the Board, but the rules shall be published in the Canada Gazette immediately after they are made.

• Marginal note:Non-application of Statutory Instruments Act

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

PART IISettlement Lands

Rights of Access Subject to Consent or Order

Marginal note:Access order

• 42 (1) Subject to subsection (2), on application by a person who has a right of access described in section 1 of Schedule II, the Board shall make an access order establishing terms and conditions for the exercise of the right.

• Marginal note:Restriction

  (2) The Board shall not make an access order in respect of a right of access described in any of paragraphs 1(a) to (d), (f), (g), (i) and (k) of Schedule II unless the applicant satisfies the Board that the applicant reasonably requires access and that access across Crown land is not practicable and reasonable.

Marginal note:Terms and conditions

• 43 (1) The Board may include in an access order made under subsection 42(1) in respect of a right of access

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

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

    • (ii) the giving of notice,

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

    • (iv) limitations on the number of persons exercising the right,

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

    • (vi) subject to any regulations made under paragraph 78(c), the giving of security in the form of a letter of credit, guarantee or indemnity bond or insurance or any other form satisfactory to the Board and the purposes for which the security is given,

    • (vii) the payment of the entry fee, in the amount established by the rules of the Board, to the Yukon first nation and, in the case of an interim access order, to any affected interest holder designated by the Board,

    • (viii) the payment of compensation for the exercise of the right and any damages resulting from that exercise to the Yukon first nation and, in the case of an interim access order, to any affected interest holder designated by the Board,

    • (ix) abandonment and restoration work, and

    • (x) the right of a Yukon first nation to verify, by inspection or otherwise, whether the other terms and conditions have been complied with; and

  • (b) any other terms and conditions that the Board considers appropriate for reducing any conflict between the exercise of that right and the use and peaceful enjoyment of the settlement land by the Yukon first nation and, in the case of an interim access order, any affected interest holder designated by the Board.

• Marginal note:Designation of route

  (2) When making an access order that designates a route of access, the Board shall designate a route that is least harmful to the interests of the Yukon first nation while being reasonably suitable to the needs of the applicant.

• Marginal note:Parameter of entry fee

  (3) The Board may, in respect of an access order, provide for the payment of only one entry fee to each Yukon first nation whose settlement land is the subject of the order, whether or not the order is amended.

• Marginal note:Payment of entry fee where interim access order

  (4) If the Board provides for the payment of an entry fee under an interim access order,

  • (a) the entry fee shall be allocated by the Board among the Yukon first nation and any affected interest holders designated by the Board; and

  • (b) no additional entry fee is payable on the issuance of an order finalizing the interim access order.

• Marginal note:Restriction for Government and public utility access

  (5) The Board may not provide for the payment of the entry fee or compensation, other than compensation for significant damage, in respect of the exercise of a right of access described in paragraph 1(c) or (d) of Schedule II.

• Marginal note:Definition of significant damage

  (6) For the purposes of subsection (5), significant damage does not include necessary alteration of settlement land or watercourses required to maintain transportation corridors referred to in paragraph 1(c) of Schedule II.

• Marginal note:Compensation factors

  (7) In determining the amount of compensation, the Board may consider such factors as it considers appropriate and, without limiting the generality of the foregoing, shall consider

  • (a) the market value of the settlement land;

  • (b) any loss of, or interference with, the use of the land and any loss of opportunity in connection therewith;

  • (c) any impact on the fish and wildlife, and their habitat, on the land;

  • (d) in all cases, any impact on fish and wildlife harvesting on the land and, in the case of Tetlit Gwich’in Yukon land described in Annex B of the Transboundary Agreement, on the gathering of plants on the land;

  • (e) any nuisance, including that caused by noise, or inconvenience or any damage to the land that may be caused by the applicant in exercising the right of access;

  • (f) any cultural or other special value of the land to the Yukon first nation;

  • (g) any expenses associated with the implementation of the order, including monitoring and inspection expenses;

  • (h) any impact on other settlement land of the Yukon first nation; and

  • (i) any compensation paid or payable to the same person by or pursuant to another authority for the exercise of the right of access or for any damages resulting from that exercise.

• Marginal note:Compensation factors

  (8) The Board shall not

  • (a) decrease the amount of compensation on account of any reversionary interest remaining in the Yukon first nation or of any entry fee payable; or

  • (b) increase the amount of compensation on account of any aboriginal claim, right, title or interest or of the value of mines and minerals on or under category B settlement land or fee simple settlement land.

• Marginal note:Payment

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