Mackenzie Valley Resource Management Act (S.C. 1998, c. 25)

Rights and Duties of Licensees and Others With Authorizations to Use Waters

Marginal note:Precedence

• 72.26 (1) If more than one person has a licence, or other authorization to use waters issued by any authority responsible for the management of waters in the Northwest Territories or in Nunavut, in respect of a federal area, the person who first applied is entitled to the use of the waters in accordance with that person’s licence or authorization in precedence over the other persons.

• Marginal note:Amendments to a licence or authorization

  (2) Subsection (1) applies, with any modifications that the circumstances require, in respect of any rights a person acquires through an amendment to that person’s licence or authorization.

• Marginal note:Renewal or assignment of a licence or authorization

  (3) Subject to subsection (2), a licence or authorization that has been renewed or assigned shall, for the purposes of this section, be deemed to be a continuation of the original licence or authorization.

Marginal note:Right to sue for compensation

• 72.27 (1) Except as otherwise provided by a compensation agreement referred to in subparagraph 72.03(5)(a)(ii), a person who is adversely affected as a result of the issuance of a licence in respect of a federal area or a use of waters or deposit of waste authorized by regulations made under paragraph 90.3(1)(m) or (n) is entitled to be compensated by the licensee, authorized user or authorized waste depositor in respect of that adverse effect, and may sue for and recover any such compensation in any court of competent jurisdiction.

• Marginal note:Rights protected

  (2) A person is not barred from exercising any rights conferred by subsection (1) merely because of having been paid the compensation referred to in subsection 72.03(5), or because of having been paid compensation under paragraph 72.11(2)(a) or under a compensation agreement referred to in subparagraph 72.03(5)(a)(ii).

Marginal note:Copies of licences

72.28 A board shall provide the territorial Minister with copies of licences issued under this Part and of any decisions and orders relating to such licences.

Aboriginal Water Rights

Marginal note:Use without licence

• 73 (1) Despite sections 72 and 72.01 or any territorial law, the Gwich’in and Sahtu First Nations have the right to use waters or to deposit waste without a licence for purposes of trapping and non-commercial wildlife harvesting other than trapping, for purposes of transportation related to those activities and for traditional heritage, cultural and spiritual purposes.

• Marginal note:Use without licence — Tlicho citizens

  (2) Despite sections 72 and 72.01 or any territorial law — and subject to any applicable Tlicho laws and, in relation to waters that are on settlement lands, any limitations under the applicable land claim agreement that are of the same type as those that apply in relation to waters on Tlicho lands — Tlicho citizens have the right to use water in the part of Monfwi Gogha De Niitlee that is in the Northwest Territories without a licence, for purposes of wildlife harvesting under 10.1.1 of chapter 10 of the Tlicho Agreement, for purposes of transportation related to such wildlife harvesting and for heritage, cultural or spiritual purposes of the Tlicho First Nation.

Marginal note:Exclusive right

74 Despite section 7.1, the Gwich’in and Sahtu First Nations have the exclusive right to the use of waters when on or flowing through their first nation lands and to the deposit of waste in relation to those waters in accordance with the other provisions of this Part or any territorial law, as the case may be.

Marginal note:Right to unaltered waters

75 Subject to sections 76 to 78, the Gwich’in First Nation and the Sahtu First Nation have, in relation to waters when on or flowing through their first nation lands or waters adjacent to their first nation lands, the right to have the quality, quantity and rate of flow remain substantially unaltered by any person.

Marginal note:Issuance, amendment or renewal of licences, etc.

76 The Gwich’in Land and Water Board or the Sahtu Land and Water Board may issue, amend or renew a licence, permit or authorization where the use of land or waters or the deposit of waste proposed by the applicant would, in the opinion of the board, interfere with a first nation’s rights under section 75, if the board is satisfied that

• (a) there is no alternative that could reasonably satisfy the requirements of the applicant;

• (b) there are no reasonable measures by which the applicant could avoid the interference; and

• (c) in the case of a licence, the requirements of section 77 are satisfied.

Compensation — Gwich’in and Sahtu First Nations

Marginal note:Conditions for licence

77 The Gwich’in Land and Water Board or the Sahtu Land and Water Board may not issue, amend or renew a licence pursuant to section 76 unless

• (a) the applicant and the first nation enter into an agreement to compensate the first nation for any loss or damage resulting from any substantial alteration to the quality, quantity or rate of flow of waters when on or flowing through its first nation lands, or waters adjacent to its first nation lands; or

• (b) the applicant or the first nation applies to the board for a determination pursuant to subsection 79(1).

Marginal note:Application to water authority

• 78 (1) If the Gwich’in Land and Water Board or the Sahtu Land and Water Board determines that a use of waters or a deposit of waste that is proposed, in an application made to a water authority, to be carried out in

  • (a) an area of the Northwest Territories or Nunavut outside the board’s management area, or

  • (b) a park to which the Canada National Parks Act applies, or lands acquired pursuant to the Historic Sites and Monuments Act, in the board’s management area

  would be likely to substantially alter the quality, quantity or rate of flow of waters when on or flowing through first nation lands of the Gwich’in or Sahtu First Nation or waters adjacent to those first nation lands, the board shall notify the water authority in writing of its determination.

• Marginal note:Access to information

  (2) A water authority shall provide a board with such information in its possession as the board requires in order to make a determination under subsection (1).

• Marginal note:Conditions for authorization

  (3) Notwithstanding any other Act, a water authority that is notified by a board under subsection (1) may not authorize the proposed use of waters or deposit of waste unless

  • (a) the applicant and the first nation have entered into an agreement to compensate the first nation for any loss or damage resulting from the alteration; or

  • (b) the applicant or the first nation applies to the board for a determination pursuant to subsection 79(1).

Marginal note:Referral of compensation to board

• 79 (1) If a compensation agreement referred to in section 77 or 78 is not entered into within the period allowed by the rules of the Gwich’in Land and Water Board or the Sahtu Land and Water Board, as the case may be, the applicant or the first nation may apply to the board for a determination of compensation.

• Marginal note:Determination of compensation

  (2) On an application pursuant to subsection (1), the board shall determine the compensation payable in respect of the proposed use of waters or deposit of waste, taking into consideration

  • (a) the effect of the proposed use or deposit on

    • (i) the first nation’s use of waters when on or flowing through its first nation lands or waters adjacent to its first nation lands, and

    • (ii) its first nation lands, taking into account any cultural or special value of those lands to the first nation;

  • (b) the nuisance or inconvenience to the first nation, including noise, that may result on first nation lands;

  • (c) the effect on wildlife harvesting carried on by the first nation; and

  • (d) any other factor that the board considers relevant in the circumstances.

Compensation — Tlicho First Nation

Marginal note:Conditions for licence

79.1 The Wekeezhii Land and Water Board may not issue, amend or renew a licence for the use of waters or the deposit of waste if, in its opinion, that use or deposit is likely to substantially alter the quality, quantity or rate of flow of waters when on or flowing through Tlicho lands or waters adjacent to Tlicho lands unless

• (a) the Board is satisfied that there is no alternative that could reasonably satisfy the requirements of the applicant and that there are no reasonable measures by which the applicant could avoid the alteration; and

• (b) the applicant has entered into an agreement with the Tlicho Government to compensate the Tlicho First Nation for any loss or damage that may be caused by the alteration, or the applicant or the Tlicho Government has applied to the Board under subsection 79.3(1) for a determination of compensation for that loss or damage.

Marginal note:Application to water authority

• 79.2 (1) If the Wekeezhii Land and Water Board determines that a use of waters or a deposit of waste that is proposed, in an application made to a water authority, to be carried out in

  • (a) Nunavut or an area of the Northwest Territories outside Wekeezhii, or

  • (b) a park to which the Canada National Parks Act applies, or lands acquired pursuant to the Historic Sites and Monuments Act, in Wekeezhii

  would be likely to substantially alter the quality, quantity or rate of flow of waters when on or flowing through Tlicho lands or waters adjacent to Tlicho lands, the Board shall notify the water authority in writing of its determination.

• Marginal note:Access to information

  (2) A water authority shall provide the Board with any information in its possession that the Board requires in order to make a determination under subsection (1).

• Marginal note:Conditions for authorization

  (3) Despite any other Act, a water authority that is notified by the Board under subsection (1) may not authorize the proposed use of waters or deposit of waste unless

  • (a) the applicant and the Tlicho Government have entered into an agreement to compensate the Tlicho First Nation for any loss or damage that may be caused by the alteration; or

  • (b) the applicant or the Tlicho Government applies to the Board under subsection 79.3(1) for a determination.

Marginal note:Referral of compensation to Wekeezhii Board

• 79.3 (1) If a compensation agreement referred to in paragraph 79.1(b) or 79.2(3)(a), as the case may be, is not entered into, the applicant or the Tlicho Government may, after having participated in mediation under chapter 6 of the Tlicho Agreement, apply to the Wekeezhii Land and Water Board for a determination of compensation.

• Marginal note:Determination of compensation

  (2) On an application under subsection (1), the Board shall determine the compensation payable in respect of the proposed use of waters or deposit of waste, taking into consideration

  • (a) the effect of the proposed use or deposit on

    • (i) the use by Tlicho citizens of waters when on or flowing through Tlicho lands, or waters adjacent to Tlicho lands,

    • (ii) Tlicho lands, taking into account any cultural or special value of those lands to the Tlicho First Nation, and

    • (iii) wildlife harvesting carried on by Tlicho citizens;

  • (b) the nuisance or inconvenience, including noise, caused by the proposed use or deposit to Tlicho citizens on Tlicho lands; and

  • (c) any other factor that the Board considers relevant in the circumstances.

• Marginal note:Form of compensation

  (3) The compensation may be in the form of a lump sum payment or periodic payments or non-monetary compensation, including replacement of, or substitution for, damaged or lost property or relocation of Tlicho citizens or their property, or any combination of those forms of compensation.