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

Marginal note:References to Federal Court

128 The Tribunal may, at any stage of its proceedings, refer to the Federal Court any question or issue of law or of jurisdiction, other than a question or issue that has been referred to an arbitration panel established under Article 38 of the Agreement.

Records

Marginal note:Records

• 129 (1) The Tribunal shall

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

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

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

• Marginal note:Fees

  (2) Any fee received by the Tribunal under paragraph (1)(b) may be used by the Tribunal for its operations.

Rules

Marginal note:Procedures, mediation and costs

• 130 (1) The Tribunal may make rules

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

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

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

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

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

• Marginal note:Negotiations

  (2) The Tribunal shall make rules establishing procedures to be followed in the conduct of negotiations for the purposes of subsection 117(1), either generally or with respect to any class of applications.

Marginal note:Non-application of Statutory Instruments Act

131 Sections 3, 5 and 11 of the Statutory Instruments Act do not apply in respect of the rules of the Tribunal.

Marginal note:Pre-publication

• 132 (1) The Tribunal shall give notice at least sixty days before making a rule by

  • (a) publishing the proposed rule in a newspaper or other periodical that, in the opinion of the Tribunal, has a large circulation in Nunavut; and

  • (b) sending a copy of the proposed rule to the council of each municipality in Nunavut.

• Marginal note:Representations invited

  (2) The notice referred to in subsection (1) shall include an invitation to interested persons to make representations in writing to the Tribunal about the proposed rule within sixty days after publication of the notice.

• Marginal note:Response to representations

  (3) The Tribunal may not make the rule until after it has responded to any representations made within the time limit referred to in subsection (2).

• Marginal note:Exception

  (4) Once a notice is published under subsection (1), no further notice is required to be published about any amendment to the proposed rule that results from representations made by interested persons.

• Marginal note:Publication

  (5) As soon as possible after the rule has been made, the Tribunal shall

  • (a) publish it in a newspaper or other periodical that, in the opinion of the Tribunal, has a large circulation in Nunavut; and

  • (b) publish a notice in the Canada Gazette that the rule has been made, indicating the newspaper or periodical in which it has been published.

DIVISION 2Entry Orders for Inuit-owned Lands

Exercise of Mineral Rights

Marginal note:Use and occupation

133 On application by any person

• (a) who has a mineral right granted by Her Majesty in right of Canada in relation to Inuit-owned land, and

• (b) who has been unable to obtain the consent of the designated Inuit organization,

the Tribunal shall make an entry order setting out the terms and conditions for the use and occupation of that land to the extent necessary for the purpose of exercising the mineral right.

Marginal note:Prospecting right

• 134 (1) A person who has a right to prospect for minerals and who applies under section 133 for an entry order to exercise that right on Inuit-owned land shall make a separate application in respect of each parcel of that land.

• Marginal note:Confidentiality

  (2) In disposing of an application made by a person who has a right to prospect for minerals, the Tribunal shall take into account the need to provide confidentiality for that person.

• Definition of parcel

  (3) In subsection (1), parcel means the portion of land represented by a code of letters and numbers in the property description, as defined in section 19.1.1 of the Agreement, used for the purposes of conveying title to Inuit-owned land.

Marginal note:Access to other land

• 135 (1) Subject to subsection (2), on application by any person

  • (a) who requires access to Inuit-owned land in order to exercise a mineral right, granted under an Act of Parliament, in relation to any other land, and

  • (b) who has been unable to obtain the consent of the designated Inuit organization,

  the Tribunal shall make an entry order setting out the terms and conditions for access to that Inuit-owned land to the extent necessary for the purpose of exercising the mineral right.

• Marginal note:Restriction

  (2) The Tribunal shall not make an entry order under subsection (1) unless the applicant satisfies the Tribunal that the access is reasonably required.

Other Commercial Purposes

Marginal note:Right to cross

• 136 (1) Subject to subsection (2), on application by any person

  • (a) who requires access across Inuit-owned land for a commercial purpose, and

  • (b) who has been unable to obtain the consent of the designated Inuit organization,

  the Tribunal shall make an entry order setting out the terms and conditions for the access.

• Marginal note:Restriction

  (2) The Tribunal shall not make an entry order under subsection (1) unless an arbitration panel established under Article 38 of the Agreement has, in accordance with the Agreement,

  • (a) established that the applicant attempted for a period of not less than sixty days to negotiate the access in good faith;

  • (b) determined that the access is essential to the commercial purposes of the applicant and that access by any other means is physically or financially impractical; and

  • (c) designated a route of access that will minimize any damage to the Inuit-owned land and interference with Inuit use of that land.

• Marginal note:Terms and conditions

  (3) An entry order made under subsection (1) shall include terms and conditions to minimize any damage to the Inuit-owned land and interference with Inuit use of that land.

• Marginal note:Compensation dispute

  (4) Where the designated Inuit organization has consented to permit a person to cross Inuit-owned land for commercial purposes but that organization and that person are unable to agree on appropriate compensation, the Tribunal shall, on application by that organization or person, make an order resolving the matter.

Construction Materials

Marginal note:Right to remove materials

• 137 (1) Subject to subsection (2), on application by the Minister or the territorial minister designated by an instrument of the Executive Council of Nunavut, in any case where the designated Inuit organization has refused entry on Inuit-owned land to remove sand, gravel or other like construction materials, the Tribunal shall make an entry order setting out the terms and conditions, including the payment of compensation, for entry on that land by agents of the Government of Canada or of the Government of Nunavut to remove those construction materials.

• Marginal note:Restriction

  (2) The Tribunal shall not make an entry order under subsection (1) unless it determines that the construction materials are required for public purposes and that no alternative supply is reasonably available.

• Marginal note:Terms and conditions

  (3) An entry order made under subsection (1) shall include terms and conditions to minimize any damage to the Inuit-owned land and interference with Inuit use of that land and shall require the rehabilitation of the site by the government that removed the construction materials.

• Marginal note:Compensation

  (4) In determining the amount of compensation that is payable as a term or condition of an entry order made under subsection (1), the Tribunal shall not take into account any amount that is payable for the construction materials.

General Rules for Orders

Marginal note:Offer of compensation

138 An applicant for an entry order shall file with the application a copy of the most recent written offer of compensation made to the designated Inuit organization or to the occupant of the land that would be subject to the order.

Marginal note:Terms and conditions

139 The Tribunal may include in an entry order, in addition to the terms and conditions required by this Part,

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

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

  • (ii) the giving of notice,

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

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

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

  • (vi) the giving of security in accordance with the regulations and the purposes for which the security is given,

  • (vii) abandonment and restoration work, and

  • (viii) the right of the designated Inuit organization or occupant of the land to verify, by inspection or otherwise, whether the other terms and conditions have been complied with; and

• (b) any other terms and conditions that the Tribunal considers appropriate to minimize any damage to or interference with the use and peaceful enjoyment of the land by the occupant of the land or Inuit.

Marginal note:Compensation factors

• 140 (1) Subject to subsection (2), in determining the amount of compensation that is payable under an order, the Tribunal may consider such factors as it considers appropriate and, without limiting the generality of the foregoing, shall consider

  • (a) the market value of the land;

  • (b) the loss of the use of the land to the designated Inuit organization, the occupant of the land and Inuit;

  • (c) the effect on wildlife harvesting by Inuit;

  • (d) the adverse effect of the use or occupancy on any other Inuit-owned land;

  • (e) any damage that may be caused to the land;

  • (f) any nuisance and inconvenience, including noise, to the designated Inuit organization, the occupant of the land and Inuit;

  • (g) the cultural attachment of Inuit to the land;

  • (h) the peculiar and special value of the land to Inuit;

  • (i) any reasonable expenses that may be incurred by the designated Inuit organization or occupant of the land as or on account of costs of an inspection under subparagraph 139(a)(viii); and

  • (j) any reasonable costs incurred by the designated Inuit organization in connection with the application and the hearing.

• Marginal note:Restriction

  (2) In determining the amount of compensation payable, the Tribunal shall not consider the reversionary value of the land or any entry fee payable.

• Marginal note:Payment

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