Surface Rights Board Act
Consolidated act- Citation
- S.N.W.T. 2014, c.17
- Source
- Unofficial consolidation PDF (justice.gov.nt.ca)
This is an unofficial reading copy parsed from the Department of Justice consolidation PDF above — itself an office consolidation, not an official statement of the law. The authoritative text is in the Revised Statutes of the Northwest Territories, 1988 and the annual Statutes volumes.
- s.27 amended by Financial Administration Act
- s.28 amended by Financial Administration Act
- s.1 Northwest Territories Act (Canada)
- s.27 Financial Administration Act
- s.27 Financial Administration Act
- s.28 Financial Administration Act
- s.50 Mackenzie Valley Resource Management Act (Canada)
- s.53 Mackenzie Valley Resource Management Act (Canada)
- s.65 Northwest Territories Lands Act
- s.92 Statutory Instruments Act
- Financial Administration Act, s.176
- Oil and Gas Operations Act, s.11
- Oil and Gas Operations Act, s.11 → #sec_1__subsec_1
- Oil and Gas Operations Act, s.122
- Oil and Gas Operations Act, s.122 → #sec_1__subsec_1
- Oil and Gas Operations Act, s.125
- Surface Rights Board Regulations, s.2 → #sec_72__subsec_2
Whereas the Gwich’in, Sahtu, Inuvialuit and Tåîchô 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 Tåîchô lands, and the waters overlying those lands, and Inuvialuit lands, as well as the compensation to be paid in respect of that access;
And 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;
The Commissioner of the Northwest Territories, by and with the advice and consent of the Legislative Assembly, enacts as follows:
INTERPRETATION
Definitions
1.(1) In this Act,
"access order" means an order made under any of sections 45 to 50, 58, 65 and 73; (ordonnance d’accès)
"Agreement" means the Gwich’in Agreement, the Inuvialuit Agreement, the Sahtu Agreement or the Tåîchô Agreement, as the case may be; (accord)
"designated land" means Gwich’in lands, Inuvialuit lands or Sahtu lands, as the case may be; (terres désignées)
"designated organization" means the Gwich’in Tribal Council, the Inuvialuit Regional Corporation or the designated Sahtu organization, as the case may be; (organisation désignée)
"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; (entité)
"federal Minister" means the Minister of Indian Affairs and Northern Development; (ministre fédéral)
"gas" means natural gas and includes all substances, other than oil, that are produced in association with natural gas; (gaz)
"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 (Canada), as that Agreement is amended from time to time in accordance with its provisions; (accord gwichin)
"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 (Canada), as that Agreement is amended from time to time in accordance with its provisions; (accord inuvialuit)
"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; (minéraux)
"non-designated land" means land in the Northwest Territories that is not designated land or Tåîchô 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 Tåîchô 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; (terres non désignées)
"occupant" means, in respect of land, an individual or entity, other than the owner, whose consent is required under an enactment or an 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; (occupant)
"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; (pétrole)
"onshore" means the onshore as defined in the Northwest Territories Act (Canada); (région intracôtière)
"regulatory authority" means a minister, a department or agency, a municipality, the Tåîchô government, a Tåîchô community government or any public body responsible — under an enactment, an Act of Parliament or a Tåîchô law — for issuing a licence, permit or other authorization; (autorité administrative)
"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 (Canada), as that Agreement is amended from time to time in accordance with its provisions; (accord du Sahtu)
"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; (région désignée)
"Tåîchô Agreement" means the Land Claims and Self-Government Agreement among the Tåîchô, 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 Tåîchô Land Claims and Self-Government Act (Canada), as that Agreement is amended from time to time in accordance with its provisions; (accord tåîchô)
"wildlife" means fauna living in a wild state, including fish, birds and mammals. It does not include reindeer. (ressources fauniques)
(2) In this Act,
"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; (organisation désignée du Sahtu et terres du Sahtu)
"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; (terres gwichines)
"Inuvialuit" means the people referred to in the definition "Inuvialuit" in section 2 of the Inuvialuit Agreement and "Inuvialuit lands" has the same meaning as in section 2 of that Agreement; (Inuvialuit)
"Môwhì Gogha Dè Nîîtåèè", "Tåîchô Citizen", "Tåîchô community", "Tåîchô community lands", "Tåîchô First Nation", "Tåîchô Government", "Tåîchô lands" and "Tåîchô law" have the same meaning as in
of the Tåîchô Agreement. (citoyen tåîchô, collectivité tåîchô, gouvernement tåîchô, loi tåîchô, Môwhì Gogha Dè Nîîtåèè, première nation tåîchô, terres d’une collectivité tåîchô et terres tåîchôs)
PRECEDENCE
Agreement prevails
2.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
Geographical application
3.This Act applies to the onshore.
Government bound
4.This Act is binding on the Government of the Northwest Territories.
GENERAL PROVISIONS
Review
5.(1) The Minister shall 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 trans-boundary 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.
(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 1(1).
Access subject to consent
6.(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 Tåîchô lands, or the waters overlying those lands, or Inuvialuit lands, without the consent of the applicable designated organization or the Tåîchô Government, as the case may be.
(2) Subsection (1) does not apply to Gwich’in participants, Sahtu participants or Tåîchô Citizens, in relation to Gwich’in lands, Sahtu lands or Tåîchô lands, respectively, or to the waters overlying those lands, or to the Inuvialuit in relation to Inuvialuit lands.
(3) Neither the issuance of an order by the 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 enactment or an Act of Parliament. CONTINUATION AND ORGANIZATION OF
Board Constitution
Continuation
7.(1) The Northwest Territories Surface Rights Board established under section 9 of the Northwest Territories Surface Rights Board Act (Canada) is continued as the Surface Rights Board under this Act and referred to in this Act as the "Board".
(2) The Board is to consist of no fewer than five and no more than nine members, including the Chairperson.
(3) The Chairperson and the other members of the Board are to be appointed by the Minister.
(4) The Minister shall make any appointments that are necessary to ensure that an odd number of members holds office at any time.
Purpose
8.(1) The purpose of the Board is to resolve matters in dispute relating to access to Gwich’in lands, Sahtu
lands and Tåîchô lands, and the waters overlying those lands, and Inuvialuit lands and non-designated land.
(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.
Chairperson
9.(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.
(2) The Board shall designate a member to act as Chairperson in the event that the Chairperson is absent or becomes incapacitated or if their office becomes vacant.
Alternate members
10.(1) The Minister shall appoint five alternate members.
(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 shall 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.
Qualifications and residency requirements
11.(1) The Minister shall 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.
(2) For greater certainty, the knowledge and experience referred to in subsection (1) includes Aboriginal traditional knowledge and experience in relation to that knowledge.
(3) Among the individuals appointed as members and alternate members, at least one member and one alternate member shall 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 Môwhì Gogha Dè Nîîtåèè.
(4) Each individual appointed as a member or alternate member referred to in any of paragraphs (3)(a) to (d) shall 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 Môwhì Gogha Dè Nîîtåèè, as the case may be.
Change of residence
12.(1) A member or alternate member who is of the opinion that they have ceased to meet the applicable residency requirements shall advise the Minister and the Board without delay.
(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 shall 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.
(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).
Term of office
13.(1) Members and alternate members are appointed to hold office for a term of five years.
(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.
Removal
14.Members and alternate members hold office during good behaviour and may be removed by the Minister for cause.
Reappointment
15.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.
Remuneration and expenses: members
16.(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 allowable expenses set out in the terms and conditions of employment for public servants of the Government of the Northwest Territories.
(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 terms and conditions of employment for public servants of the Government of the Northwest Territories.
Staff
17.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.
Conflict of interest
18.(1) A member, employee of the Board, agent, adviser or expert shall not perform their functions if doing so would place them in a conflict of interest.
(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.
Acts done in good faith
19.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
20.The head office of the Board is to be at Yellowknife or at any other location in the Northwest Territories that the Commissioner in Executive Council designates.
Meetings
21.(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.
(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: powers of Board
22.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
Status
23.The Board is an institution of public government but is not an agent of the Government of the Northwest Territories.
Property and contracts
24.(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.
(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.
Government services and facilities
25.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.
Obtaining information
26.(1) Subject to an enactment, an Act of Parliament or a Tåîchô law, the Board may obtain from any department, board or agency of the Government of the Northwest Territories or the Government of Canada or from the Tåîchô Government any information in the possession of the department, board or agency or the Tåîchô Government that the Board requires to exercise its powers or perform its functions.
(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.
Financial Provisions
Annual budget
27.(1) The Board shall submit, annually, a budget for the following fiscal year to the Minister for review.
(2) On completion of the review, the Minister may approve or vary the budget.
(3) The Board shall maintain books of account and related records in accordance with
(a) the planning and accountability framework defined in subsection 1(1) of the Financial Administration Act; and
(b) applicable accounting policies and practices referred to in section 20 of that Act.
(4) The Board shall, 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 applicable accounting policies and practices referred to in section 20 of the Financial Administration Act.
(5) The accounts, financial statements and financial transactions of the Board must be audited annually by an auditor approved by the Minister.
(6) On completion of an audit referred to in subsection (5), the auditor shall provide an audit report to the Board and the Minister. S.N.W.T. 2015, c.13,s.176(2).
Annual Report
Preparation and submission to Minister
28.The Board shall, in accordance with subsection 32(1) of the Financial Administration Act, prepare and submit to the Minister an annual report that includes 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
Negotiations
29.(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 90(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.
(2) In the case of an application in respect of Tåîchô 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 Tåîchô Agreement and is unable to bring about a resolution of the dispute.
Resolved matters
30.(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.
(2) For greater certainty, subsection (1) does not have the effect of preventing the Board from performing its functions under any of sections 51, 54, 66 and 69.
Matters not raised
31.The Board is not authorized to make an order in respect of a matter that is not raised by either of the parties.
Hearings
Rules of evidence
32.The Board shall 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) shall take into account any material that it considers relevant, including Aboriginal traditional knowledge.
General powers of Board
33.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.
Reference
34.The Board may, at any stage of its proceedings, refer to the Supreme Court 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.
Parties to hearing
35.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 Tåîchô lands or access to non-designated land, and
(ii) in relation to designated land, the applicable designated organization, in relation to Tåîchô lands, the Tåîchô 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 Tåîchô 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 Tåîchô 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 Tåîchô lands, the applicable designated organization or the Tåîchô Government, or, in relation to non-designated land, the owner or occupant to whom compensation is payable.
Absence of party
36.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 90(b).
Location of hearing
37.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 Tåîchô lands, in a community that is located in the Môwhì Gogha Dè Nîîtåèè; and
(c) in relation to non-designated land, in the community in the Northwest Territories that is closest to that land.
Panel composition
38.An application for an order that the Board, in accordance with section 29, 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.
Assignment of members
39.Subject to section 40, 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.
Residency and knowledge requirements
40.(1) If an application for, or a review of, an order deals with Gwich’in lands, Sahtu lands or Tåîchô 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 shall have been appointed by the Minister for reasons that include their being a resident of the applicable settlement area or the Môwhì Gogha Dè Nîîtåèè, as the case may be, and having the knowledge required under subsection 11(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.
(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 shall have been appointed by the Minister for reasons that include their meeting the residency requirement set out in paragraph 11(3)(b) and having the knowledge required under subsection 11(4) in relation to the settlement area; and
(b) the lands to which the application or review relates are located in the settlement area.
Absence of panel members
41.(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 40, meets the residency and knowledge conditions referred to in that section.
(2) If a party does not consent, the application must be reheard, or the review conducted, by another panel.
(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.
Information made available
42.Before making an order or a decision in respect of the review of an order, a panel shall make any information that it intends to use available to the parties and provide them with a reasonable opportunity to respond to the information.
Powers and functions
43.(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.
(2) An order of a panel is an order of the Board. ORDERS IN RELATION TO DESIGNATED
LAND AND TÅÎCHÔ LANDS
Access Orders
Required Documents
Copy of agreement or offer
44.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 Tåîchô Government, as the case may be.
Obligation of Board To Make Access Orders
Definition: "explore for"
45.(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 an enactment or an 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 an enactment or an Act of Parliament.
(2) The Board shall, 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 an enactment or an 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.
Access across: Gwich’in, Sahtu or Tåîchô lands
46.(1) The Board shall, 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 Tåîchô 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 Tåîchô Government, as the case may be, and the individual or entity has been unable to obtain that 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 Tåîchô 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 Tåîchô 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 Tåîchô 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 Tåîchô 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 Tåîchô lands by Tåîchô Citizens or the Tåîchô 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 Tåîchô Agreement.
(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 Tåîchô Citizens and the Tåîchô First Nation, as the case may be.
Access across: Inuvialuit lands
47.(1) The Board shall, 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.
(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.
(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.
(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.
Definitions
48.(1) In this section,
"navigable waterways" means any portion of a navigable river overlying Gwich’in lands, Sahtu lands or Tåîchô lands and other navigable bodies of water overlying those lands that can be entered from a navigable river; (voie navigable)
"portages" means routes on Gwich’in lands, Sahtu lands or Tåîchô lands for carrying boats and goods between navigable waterways; and (portage)
"waterfront lands" means the 30.48 metre wide area of Gwich’in lands or Sahtu lands, or the 31 metre wide area of Tåîchô 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 Tåîchô Agreement, of a navigable waterway. (terre riveraine)
(2) The Board shall, 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 Tåîchô Government, as the case may be, and the individual or entity has been unable to obtain that 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 Tåîchô 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 Tåîchô 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 Tåîchô 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 Tåîchô lands by Tåîchô Citizens or the Tåîchô 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 Tåîchô Agreement.
Definition:
49.(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.
(2) The Board shall, 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 an enactment or an Act of Parliament — 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.
(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: "existing right"
50.(1) In this section, "existing right" means a right of access to Tåîchô 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 Tåîchô 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 established under the Mackenzie Valley Resource Management Act (Canada) before the day on which the Tåîchô Land Claims and Self-Government Act (Canada) came into force.
(2) The Board shall, on application, make an order setting out the terms and conditions on which an individual or entity may access Tåîchô 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 Tåîchô Land Claims and Self-Government Act (Canada) 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 Tåîchô Government.
Terms and Conditions
Terms and conditions agreed to by parties
51.If the parties to a hearing have concluded an agreement regarding terms and conditions of access, the Board shall include those terms and conditions in the access order.
Terms and conditions determined by Board
52.(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 Tåîchô 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,Tåîchô Citizens or the Tåîchô First Nation, as the case may be.
(2) The Board is not authorized to include as a term or condition in an access order the posting of security.
Inconsistent terms and conditions
53.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 (Canada).
Compensation agreed to by parties
54.(1) If the parties to a hearing have concluded an agreement regarding the compensation to be paid in respect of access, the Board shall set out the amount of that compensation in the access order.
(2) If provided for in the agreement, the Board shall also set out the manner of payment of the compensation in the access order.
Compensation determined by Board
55.(1) If the parties to a hearing have not concluded an agreement regarding the compensation to be paid in respect of access, the Board shall determine the amount of the compensation and, in so doing, shall 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 Tåîchô 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 Tåîchô 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 Tåîchô First Nation, as the case may be;
(h) any adverse effect on other Gwich’in lands, Inuvialuit lands, Sahtu lands or Tåîchô lands; and
(i) any reasonable expenses that may be incurred by a designated organization, the Tåîchô Government or an individual or entity occupying the land on account of the costs of an inspection referred to in subparagraph 52(1)(a)(vii).
(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.
(3) In paragraph (1)(c), "harvesting" means gathering, hunting, trapping or fishing.
Manner of payment
56.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
Access fee and amount for exercise of right of access
57.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 Tåîchô 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 Tåîchô 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
If compensation not determined
58.(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.
(2) Within 30 days after making an interim access order, the Board shall 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.
(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
Required documents
59.An application for an order under section 60 or 61 must be accompanied by a copy of the most recent written offer of compensation, if any, made to the applicable designated organization or the Tåîchô Government, as the case may be.
Definition: "public utility"
60.(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 an enactment or an Act of Parliament. For greater certainty, "public utility" does not include the transmission of hydrocarbons by pipelines.
(2) The Board shall, 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 Tåîchô Government or Tåîchô Citizens, as the case may be, for damage to Gwich’in lands, Sahtu lands or Tåîchô lands, or for interference with the use and peaceful enjoyment of Gwich’in lands by Gwich’in participants, Sahtu lands by Sahtu participants or Tåîchô lands by Tåîchô Citizens or the Tåîchô 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 Tåîchô 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 Tåîchô Government, as the case may be, have been unable to agree on the amount of compensation.
Unforeseen damage
61.If compensation is payable to a designated organization or the Tåîchô Government under an access order of the Board, including one that is no longer in effect, the Board shall, on application by the designated organization or the Tåîchô Government, make an order setting out the amount of additional compensation to be paid to the designated organization or the Tåîchô Government, as the case may be, for any damage that was caused to designated land or Tåîchô 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.
Factors to be considered
62.(1) In determining the amount of compensation to be paid for the purpose of an order made under section 60 or 61, the Board shall consider all relevant factors, including those listed in paragraphs 55(1)(a) to (i).
(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.
Manner of payment
63.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
Copy of agreement or offer
64.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
Minerals
65.(1) The Board shall, 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 an enactment or an 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.
(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, continued under the Oil and Gas Land Regulations made under the Northwest Territories Lands Act.
Terms and Conditions
Terms and conditions agreed to by parties
66.If the parties to a hearing have concluded an agreement regarding terms and conditions of access, the Board shall include those terms and conditions in the access order.
Terms and conditions determined by Board
67.(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.
(2) The Board is not authorized to include as a term or condition in an access order the posting of security.
Inconsistent terms and conditions
68.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
Compensation agreed to by parties
69.(1) If the parties to a hearing have concluded an agreement regarding the compensation to be paid in respect of access, the Board shall set out the amount of that compensation in the access order.
(2) If provided for in the agreement, the Board shall also set out the manner of payment of the compensation in the access order.
Compensation determined by Board
70.(1) If the parties to a hearing have not concluded an agreement regarding the compensation to be paid in respect of access, the Board shall determine the amount of the compensation and, in so doing, shall 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 67(1)(a)(vii).
(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 shall 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.
(3) In determining the amount of compensation, the Board is not authorized to consider the reversionary value of the land.
(4) In paragraph (2)(a), "harvesting" means gathering, hunting, trapping or fishing.
Manner of payment
71.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
Amount for exercise of right of access
72.(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.
(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
If compensation not determined
73.(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.
(2) Within 30 days after making an interim access order, the Board shall 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.
(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
Required documents
74.An application for an order under section 75 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.
Unforeseen damage
75.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 shall, 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.
Factors to be considered
76.(1) In determining the amount of compensation to be paid for the purpose of an order made under section 75, the Board shall consider all relevant factors, including those listed in paragraphs 70(1)(a) to (e).
(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 shall also consider the factors listed in paragraphs 70(2)(a) to (c).
(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.
Manner of payment
77.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
Costs
78.The Board may, by order, award costs on or before the final disposition of a matter, in accordance with the rules made under section 91 or, in the absence of any such rules, in its discretion.
Reasons
79.The Board shall 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.
Final and binding
80.Subject to sections 85 to 88, 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.
Copies
81.The Board shall, as soon as feasible, provide copies of any order or decision referred to in section 79 to the parties and any applicable regulatory authority.
Proof of orders
82.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.
Successors
83.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.
Enforcement of orders
84.An order of the Board may be made an order of the Supreme Court 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
Revew on application
85.(1) The Board shall, 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.
(2) On completion of its review of an access order, the Board shall 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.
(3) The Board may only amend an access order in a way that is not likely to cause significant damage to designated land, Tåîchô 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, Tåîchô Citizens or the Tåîchô First Nation or the owner or occupant of non-designated land, as the case may be.
Five-year review
86.(1) The Board shall 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.
(2) The Board shall, 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.
(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.
(4) On completion of its review of an access order, the Board shall 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.
(5) The Board may only amend an access order in a way that is not likely to cause significant damage to designated land, Tåîchô 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, Tåîchô Citizens or the Tåîchô First Nation or the owner or occupant of non-designated land, as the case may be.
Termination of Access Orders
Application by party
87.(1) The Board shall, 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.
(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.
Application by parties
88.The Board shall, 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
Exclusive jurisdiction
89.The Supreme Court 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
Mandatory rules
90.The Board shall make rules, consistent with the Agreements, respecting
(a) the conduct of negotiations for the purposes of subsection 29(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.
Other rules
91.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.
Statutory Instruments Act
92.Sections 2, 4 and 9 of the Statutory Instruments Act do not apply in respect of the rules of the Board.
Notice of proposed rule
93.(1) The Board shall 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 federal Minister, designated organizations and the Tåîchô 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.
(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.
(3) The Board shall consider any written representation that it receives within the required period and make any amendment to the proposed rule that it considers appropriate.
(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.
(5) As soon as feasible after the rule is made, the Board shall
(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 Northwest Territories Gazette that the rule has been made, indicating the newspaper in which it has been published.
Public Registry
Contents
94.(1) The Board shall maintain a public registry on its Internet site. The Board shall include the following in that registry:
(a) a list of its members and alternate members;
(b) all bylaws made under section 22;
(c) the annual report referred to in section 28;
(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 79; and
(e) all rules made under sections 90 and 91.
(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.
(3) For greater certainty, the information or knowledge referred to in paragraph 90(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
Regulations
95.The Commissioner in Executive Council may make regulations
(a) specifying types of agreements for the purpose of section 5;
(b) defining "resident" for the purposes of subsection 10(2) or 11(1) or (3), section 12 or 40 or subsection 41(1), as the case may be;
(c) specifying what constitutes a conflict of interest for the purpose of section 18;
(d) fixing, for the purposes of sections 56, 63, 71 and 77, 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 57 and subsection 72(2);
(f) establishing conditions under which documents may be inspected by the public under subsection 94(2); and
(g) generally, for carrying out the purposes and provisions of this Act.
TRANSITIONAL
Matters governed by Northwest
96.This Act applies to all matters governed by the Northwest Territories Surface Rights Board Act (Canada) before the coming into force of this Act.
Request for arbitration already made
97.This Act does not apply to any matter that is, before the day on which section 6 comes into force, the subject of a submission to arbitration, as referred to in 6.3.2 of the Gwich’in Agreement and
of the Sahtu Agreement, or a request for arbitration, as referred to in 6.5.1 of the Tåîchô Agreement.
Inuvialuit Agreement
98.This Act does not apply to any matter that is, before the day on which section 6 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.
Board members continued
99.Any board members appointed by the federal Minister under section 9 of the Northwest Territories Surface Rights Board Act (Canada) before the coming into force of this Act, continue as members of the Board under section 7 of this Act as if they had been appointed by the Minister under this Act.
COMMENCEMENT
Coming into force
100.(1) Sections 1 to 5, 7 to 28 and 90 to 99 of this Act come into force on April 1, 2014.
(2) Sections 6 and 29 to 89 come into force on April 1, 2016 or such earlier date as ordered by the Commissioner in Executive Council.