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

Division 2Licences

General Rules

Marginal note:Issuance

• 42. (1) Subject to this Act and on application, the Board may issue the appropriate licence.

• Marginal note:Exception

  (2) The Board may not issue a licence in respect of a use of waters described in paragraph 11(2)(b) or (c) or a deposit of waste described in paragraph 12(2)(b).

• Marginal note:Refusal to issue licence

  (3) The Board may not refuse to issue a licence merely because the regulations authorize the use of waters or the deposit of waste without a licence.

Marginal note:Renewal, amendment and cancellation

• 43. (1) Subject to this Act, the Board may

  • (a) on application by the licensee, renew a licence, with or without changes to the conditions of the licence;

  • (b) amend, for a specified term or otherwise, any condition of a licence

    • (i) on application by the licensee,

    • (ii) to deal with a water shortage, or

    • (iii) where the Board considers the amendment to be in the public interest; and

  • (c) cancel a licence

    • (i) on application by the licensee,

    • (ii) where the licensee, for three successive years, fails to exercise the licensee’s rights under the licence, or

    • (iii) where the Board considers the cancellation to be in the public interest.

• Marginal note:Renewal and amendment

  (2) Sections 57 to 76 apply in relation to the renewal or amendment of a licence.

Marginal note:Assignment of licences

• 44. (1) A sale or other disposition by a licensee of any right, title or interest in an appurtenant undertaking constitutes, subject to the authorization of the Board, an assignment of the licence to the person to whom the sale or other disposition is made.

• Marginal note:Authorization of assignment

  (2) The Board shall, on application, authorize the assignment of a licence if it is satisfied that the assignment and the operation of the appurtenant undertaking would not be likely to result in a contravention of any condition of the licence or any provision of this Part or the regulations.

• Marginal note:Licence not otherwise assignable

  (3) Except as provided in this section, a licence is not assignable.

Marginal note:Term

45. The term of a licence or any renewal shall not exceed twenty-five years.

Marginal note:Expiry or cancellation

46. The expiry or cancellation of a licence does not relieve the holder from any obligations imposed by the licence.

Marginal note:Precedence

47. Subject to section 62, where two persons hold licences or other authorizations to use waters issued by any authority responsible for the management of waters in the Northwest Territories or in Nunavut, the person who first applied is entitled to the use of the waters in accordance with that person’s licence or authorization in precedence to the other person.

Applications in Relation to Licences

Marginal note:Requirements

• 48. (1) An application in relation to a licence shall contain the information and be in the form required by the rules or by-laws of the Board, and be accompanied by the fees required by the regulations.

• Marginal note:Information and studies to be provided to Board

  (2) An application, except in relation to a cancellation, shall be accompanied by the information and studies concerning the use of waters or the deposit of waste that are required for the Board to evaluate the qualitative and quantitative effects of the use or the deposit on waters.

• Marginal note:Guidelines for applicant

  (3) On the filing of an application, the Board may provide guidelines to the applicant respecting the information to be provided by the applicant in respect of any matter that the Board considers relevant, including the following:

  • (a) the description of the use of waters, deposit of waste or appurtenant undertaking, as the case may be;

  • (b) the qualitative and quantitative effects of the use of waters or the deposit of waste on the drainage basin where the use is to be undertaken or the deposit is to be made, and the anticipated impact of the use or deposit on other users;

  • (c) the measures the applicant proposes to take to avoid or mitigate any adverse impact of the use of waters or the deposit of waste;

  • (d) the measures the applicant proposes to take to compensate persons, including the designated Inuit organization, who are adversely affected by the use of waters or the deposit of waste;

  • (e) the program the applicant proposes to undertake to monitor the impact of the use of waters or the deposit of waste;

  • (f) the interests in and rights to lands and waters that the applicant has obtained or seeks to obtain; and

  • (g) the options available for the use of waters or the deposit of waste.

Marginal note:Delegation

49. The Board may delegate to its chief administrative officer the power

• (a) to issue, amend, renew or cancel a licence in relation to which no public hearing is required; and

• (b) to authorize, in accordance with subsection 44(2), the assignment of a licence.

Procedure

Marginal note:Standing

50. In the exercise of its functions in relation to applications, the Board shall accord full standing to the following:

• (a) Tunngavik, or any other Organization, within the meaning of section 1.1.1 of the Agreement, designated by Tunngavik, to make representations on behalf of the Inuit of Nunavut;

• (b) Makivik to make representations respecting the interests of the Inuit of northern Quebec in relation to islands and marine areas of the Nunavut Settlement Area traditionally used and occupied by those Inuit;

• (c) the councils of the Fort Churchill Indian Band and Northlands Indian Band to make representations respecting their interests in relation to the areas that those bands have traditionally used and continue to use; and

• (d) the councils of the Black Lake Indian Band, Hatchet Lake Indian Band and Fond du Lac Indian Band to make representations respecting their interests in relation to the areas that those bands have traditionally used and continue to use.

The Board shall take the representations into account.

Marginal note:Applications determined summarily

• 51. (1) Applications in relation to licences for which no public hearing is required shall be dealt with summarily by the Board.

• Marginal note:Exception

  (2) Notwithstanding subsection (1), the Board may, where satisfied that it would be in the public interest to do so, hold a public hearing in connection with any matter relating to its objects.

Marginal note:Public hearing required

• 52. (1) Subject to subsection 37(2), a public hearing shall be held by the Board before it disposes of

  • (a) any application in relation to a licence, unless the application is of a class that is exempted by the regulations from the requirement of a public hearing; and

  • (b) an application for permission to expropriate under section 77.

• Marginal note:Exception

  (2) A public hearing need not be held

  • (a) if the applicant or licensee consents in writing to the disposition of a matter without a public hearing, provided that no other person informs the Board by the tenth day before the day of the proposed hearing of the person’s intention to make representations;

  • (b) before an application is rejected under subsection 38(2); or

  • (c) in the case of an application for the amendment of a licence where the Board, with the consent of the Minister, declares the amendment to be required on an emergency basis.

Marginal note:Place of hearing

53. A public hearing that is held by the Board shall take place in the community or communities within Nunavut most affected by the application before the Board.

Marginal note:Powers at hearings

54. The Board has, in respect of public hearings, the powers of a commissioner appointed under Part I of the Inquiries Act.

Marginal note:Notice of applications

• 55. (1) The Board shall give notice of every application in relation to a licence to the council of each municipality in the area affected by the application and shall publish the notice in a newspaper of general circulation in the area affected or, if there is no such newspaper, in such other manner as the Board considers appropriate. The notice shall invite interested persons to make representations within a specified period and shall advise them of the consequences, as provided in section 59 and subsection 60(2), of any failure to respond to the notice.

• Marginal note:Notice of hearings

  (2) Where the Board decides or is required under this Part to hold a public hearing, it shall give notice, in the manner described in subsection (1), at least sixty days before the commencement of the hearing, of the place, date and time of the hearing. The place, date and time of the hearing shall be chosen and the notice published by the Board in a manner that promotes public awareness and participation in that hearing.

• Marginal note:Communication of information

  (3) Where a public hearing is held in relation to an application, the information provided to the Board in relation to the application shall be made available to the public within a reasonable period of time before the commencement of the hearing.

• Marginal note:Where public hearing not held

  (4) Where a public hearing is not held in relation to an application, the Board shall not act on the application until at least thirty days after notice of the application has been published under subsection (1) unless, in the opinion of the Board, there are urgent circumstances that justify the Board acting on that application in a shorter period, but that shorter period shall not be less than ten days.

• Marginal note:Exception

  (5) Subsections (1) and (4) do not apply in respect of an application for the amendment of a licence where the Board, with the consent of the Minister, declares the amendment to be required on an emergency basis.

Conditions of Issuance

Marginal note:Approval of issuance

• 56. (1) The issuance, amendment, renewal and cancellation of a type A licence and, if a public hearing is held, a type B licence are subject to the approval of the Minister.

• 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 under this Act or the Northwest Territories Waters Act 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 the Northwest Territories Waters Act, using waters or depositing waste in the Northwest Territories or in Nunavut without a licence under either Act,

    • (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.

• (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.