Additional Terms for Right of Access Not Subject to Consent

Order for additional terms and conditions

47. On application made by a Yukon first nation that does not reach an agreement with the Minister in respect of terms and conditions for the exercise by any person, on the settlement land of the Yukon first nation, of a right of access described in section 2 of Schedule II that are additional to any applicable terms and conditions described in subsections 2(2) to (6) of that Schedule, the Board shall

    (a) make an order establishing terms and conditions that specify seasons, times, locations, methods of access or manner of access; or

    (b) dismiss the application.

Restrictions

48. (1) Unless the Yukon first nation and the Minister agree otherwise, terms and conditions may not be established pursuant to an order made under section 47 for a purpose other than

    (a) protecting the environment;

    (b) protecting fish or wildlife or their habitat;

    (c) reducing conflicts between the exercise of that right and the traditional or cultural uses of settlement land by the Yukon first nation or a Yukon Indian person; or

    (d) protecting the use and peaceful enjoyment of land used for communities or residences.

Restrictions

(2) No additional term or condition established pursuant to an order made under section 47 may

    (a) restrict law enforcement or any inspection authorized by law;

    (b) impose a fee or charge for the exercise of that right; or

    (c) unreasonably restrict the exercise of that right.

Publication of order

49. The Board shall publish each order made under section 47 in the Canada Gazette and in such other manner as, in its opinion, will best bring it to the attention of those persons affected by it.

Disputes respecting Rights of Access Not Subject to Consent

Disputes over particular access rights

50. On application by any person or Yukon first nation, the Board shall make an order resolving any dispute concerning the interpretation, application or violation of a right of access described in paragraph 2(1)(b) or (c) of Schedule II or of a term or condition established by the Yukon first nation with the agreement of the Minister, or by an order made under section 47, in respect of such a right.

Disputes over waterfront right-of-way

51. (1) On application by a Government or a Yukon first nation that has established or proposes to establish a permanent camp or structure on a waterfront right-of-way on its settlement land, the Board shall make an order resolving any dispute as to whether

    (a) the camp or structure substantially alters, or would substantially alter, the right to use that waterfront right-of-way as described in paragraph 2(1)(a) of Schedule II; or

    (b) there is a reasonable alternate area for the exercise of the right to use a waterfront right-of-way as described in paragraph 2(1)(a) of Schedule II.

Order requiring removal or prohibition of camp or structure

(2) The Board may include in the order a provision requiring the Yukon first nation to remove the camp or structure or prohibiting it from establishing the camp or structure.

Specified Substances Disputes

Definition of ``specified substances right''

52. (1) In this section, ``specified substances right'' means the right of a Yukon first nation to take and use a specified substance on its settlement land, without payment of a royalty.

Conflicts between specified substances right and mineral right

(2) In the case of a conflict between the exercise by a Yukon first nation of its specified substances right and the exercise of a mineral right by its holder, the Board shall, on application by the Yukon first nation or that holder, make an order specifying terms and conditions for exercising either right or both rights so as to reduce interference between them as far as practicable, but, to the extent that interference with the exercise of the specified substances right cannot be avoided, the Board shall give priority to the exercise of the mineral right.

Compensation

(3) The Board shall include in an order under subsection (2) that gives priority to the exercise of a new mineral right a provision requiring the person who has that right to pay compensation to the Yukon first nation for any interference with, or loss of opportunity for, the exercise of the specified substances right, and, in determining the compensation for loss of opportunity, the Board shall take into account the production costs incurred by the person who has the new mineral right.

Quarry Disputes

Definitions

53. (1) In this section,

``identified quarry''
« carrière déterminée »

``identified quarry'' means a quarry on settlement land that was identified by a Government

      (a) prior to the selection of the settlement land for the final agreement of the Yukon first nation concerned or for the Transboundary Agreement, or

      (b) within the period specified in the final agreement or Transboundary Agreement for identification of quarries or, if no period is so specified, within two years after the date that Agreement takes effect;

``new quarry''
« nouvelle carrière »

``new quarry'' means a quarry on settlement land that is not an identified quarry;

``quarry''
« carrière »

``quarry'' means

      (a) a pit, excavation or other place that is made by any means for the purpose of removing rock, gravel, sand, marl, clay, earth, silt, pumice, volcanic ash or any other material, or any material derived therefrom or occurring as a constituent part thereof, used in the construction and maintenance of public roads and other public works, or

      (b) a site identified for the purpose referred to in paragraph (a),

    and includes works, machinery, plants and buildings below or above ground belonging to or used in connection with a such a place or site.

Disputes over identified quarries

(2) On application by a Government or Yukon first nation, the Board shall make an order resolving any dispute as to the use or restoration by the Government of an identified quarry.

Disputes over new quarries

(3) On application by a Government or Yukon first nation made at least thirty days after the Government's request for the use of a new quarry, the Board shall make an order

    (a) resolving any dispute as to whether the Government needs a new quarry or whether a suitable alternate quarry is available on non-settlement land in the surrounding area; or

    (b) establishing terms and conditions for the use by the Government of the new quarry.

Prohibition

(4) Where the Board makes an order determining that the Government does not need a new quarry or that a suitable alternative quarry is available on non-settlement land, the Board shall include in the order a provision prohibiting the Government from establishing or using the new quarry.

Expropriation

Definitions

54. In this section and sections 55 to 58,

``authority''
« autorité expropriante »

``authority'' means any Government or any other entity authorized by or pursuant to any Act to expropriate land;

``land''
« terre »

``land'' includes any interest in land recognized by law.

Order in respect of an expropriation

55. On application by an authority or a Yukon first nation, the Board shall make an order fixing the compensation to be provided for the expropriation of settlement land by the authority, other than an expropriation under the National Energy Board Act.

Compensation

56. (1) In determining the amount of compensation, the Board may consider such factors as it deems appropriate and, without limiting the generality of the foregoing, shall consider

    (a) the market value of the settlement land;

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

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

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

    (e) any nuisance, including that caused by noise, or inconvenience or any damage to the land that may be caused as a result of the expropriation;

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

    (g) any expenses associated with the implementation of the order; and

    (h) any impact on other settlement land of the Yukon first nation.

Compensation

(2) The Board shall not

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

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

Form of compensation

(3) The compensation may be in any form or combination of forms, including money and, if requested by the Yukon first nation, land of the authority within the traditional territory of the Yukon first nation if the land is identified by the Yukon first nation and is available.

Payment

(4) The Board may require compensation in the form of money 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.

Land compensation

57. (1) If a Yukon first nation requests land as all or part of the compensation, the Board shall

    (a) determine whether the authority holds the land identified by the Yukon first nation and, if so, whether the land is within the traditional territory of the Yukon first nation and is available;

    (b) determine the value of the land that is available; and

    (c) order the authority to transfer to the Yukon first nation the amount of the available land that is necessary to provide the compensation in land.

Crown land

(2) If the authority is not the Government and the Board determines that sufficient land is not available for the purposes of subsection (1), the Board shall

    (a) notify the Minister and Territorial Minister to that effect;

    (b) determine whether either Government holds land contiguous to the settlement land concerned and, if so, whether the land is within the traditional territory of the Yukon first nation and is available;

    (c) determine the value of the land that is available; and

    (d) order the Government to transfer to the Yukon first nation the amount of the available land that, together with any land transferred pursuant to an order under paragraph (1)(c), is necessary to provide the compensation in land.

Balance of compensation

(3) If the land transferred pursuant to orders under paragraphs (1)(c) and (2)(d) is not sufficient to provide the compensation in land, the Board shall order the authority to provide the balance of the compensation in any other form or combination of forms.

Factors

(4) In determining the value of land that is to be transferred to the Yukon first nation, the Board may consider such factors as it deems appropriate and, without limiting the generality of the foregoing, shall consider

    (a) the market value of the land;

    (b) the value of fish and wildlife harvesting and of the gathering of plants on the land to the Yukon first nation;

    (c) any potential effect of the transfer of the land on settlement land of the Yukon first nation; and

    (d) any cultural or other special value of the land to the Yukon first nation.

When land not available

(5) For the purposes of this section, land is not available if it is

    (a) land that is subject to a lease or an agreement for sale, unless the Government and the holder of the interest consent to the land being available;

    (b) land that is determined by the Board to be occupied or used, or required for future use, by the authority, any department or agency of a Government or any municipal government, unless the authority, department, agency or government consents to the land being available;

    (c) land that is within thirty metres of the boundary line between the Yukon Territory and Alaska, British Columbia or the Northwest Territories;

    (d) land the provision of which to a Yukon first nation would, in the determination of the Board, unreasonably limit the expansion of any community or the access by any person to navigable waters or highways;

    (e) a highway or highway right-of-way; or

    (f) any other land that is determined by the Board not to be available.

Definitions

58. (1) In this section,

``identified site''
« emplacemen t déterminé »

``identified site'' means a site for a hydro-electric or water storage facility on settlement land that is identified on the map of that settlement land annexed to the final agreement of a Yukon first nation;

``unidentified site''
« emplacemen t indéterminé »

``unidentified site'' means a site for a hydro-electric or water storage facility on settlement land that is not an identified site.

Compensation for identified site

(2) In making an order under section 55 in respect of the expropriation of settlement land for the construction, maintenance and operation of a hydro-electric or water storage facility at an identified site, the Board shall not

    (a) fix compensation for anything other than improvements to the settlement land; or

    (b) fix compensation in an amount that, together with all other compensation provided to Yukon first nations in respect of the facility whether pursuant to such an order or otherwise, would exceed three per cent of the cost of construction of the facility.

Compensation for unidentified sites

(3) In making an order under section 55 in respect of the expropriation of settlement land for the construction, maintenance and operation of a hydro-electric or water storage facility at an unidentified site, the Board shall not

    (a) take into consideration the cultural or other special value to the Yukon first nation of the land or any land to be provided as compensation for the expropriation; or

    (b) fix compensation for improvements to the settlement land in an amount that, together with all other compensation for improvements provided to Yukon first nations in respect of the facility whether pursuant to such an order or otherwise, would exceed three per cent of the cost of construction of the facility.