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His Excellency the Governor General recommends to the House of
Commons the appropriation of public revenue under the circumstances,
in the manner and for the purposes set out in a measure entitled ``An Act
respecting the water resources of Nunavut and the Nunavut Surface
Rights Tribunal and to make consequential amendments to other Acts''.
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This enactment implements obligations under the Agreement
between the Inuit of the Nunavut Settlement Area and Her Majesty the
Queen in right of Canada. The Agreement came into effect on July 9,
1993 by virtue of the Nunavut Land Claims Agreement Act.
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Part 1 of the enactment implements provisions of the Agreement
related to management of waters. It establishes an institution of public
government, the Nunavut Water Board. The members of the Board are
appointed by the Minister of Indian Affairs and Northern Development.
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The Nunavut Water Board has powers similar to those of the
Northwest Territories Water Board under the Northwest Territories
Waters Act. The Board's primary function is to license uses of water and
deposits of waste. The Board is required, in the exercise of that licensing
power, to consider any detrimental effects of a potential use of waters
or a deposit of waste on other water users and is to hold, where
appropriate, public hearings.
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Part 1 reproduces specific requirements of the Agreement. The main
requirement is that the Board is prohibited from issuing, renewing or
amending a licence if there may be a substantial effect on the quality,
quantity or rate of flow of waters through Inuit-owned land unless the
applicant has entered into an agreement with the Inuit to compensate for
any loss or damage or the Board has determined the appropriate
compensation.
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The Nunavut Water Board is required to cooperate with the Nunavut
Planning Commission to develop land use plans that affect water, and
with the Nunavut Impact Review Board to assess environmental and
socio-economic impacts of water-related project proposals.
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In Part 2 of the enactment, the Government of Canada implements
the obligation it has undertaken in the Agreement to establish the
Nunavut Surface Rights Tribunal as an independent body. The
Agreement grants the Inuit ownership of certain lands in Nunavut, and
certain rights respecting the compensation for harvesting of wildlife
resources.
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The Tribunal is an institution of public government composed of up
to eleven members appointed by the Minister of Indian Affairs and
Northern Development. The Tribunal has the power to make orders
establishing conditions for access to Inuit-owned land, privately owned
land and privately occupied Crown land. In the case of loss suffered by
Inuit in respect of wildlife harvesting due to development activity, the
Tribunal has the power to determine the liability of the developer for
compensation.
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Clause 175: These amendments are consequential on
the establishment of a territory of Canada, to be known
as Nunavut, by section 3 of the Nunavut Act, S.C. 1993,
c. 28. That section, which is not yet in force, will come
into force pursuant to subsection 79(1) of that Act on
April 1, 1999 or on such earlier day as the Governor in
Council may fix by order.
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Clause 176: New.
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Clause 178: The definition ``analyst'' in section 2
reads as follows:
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``analyst'' means a person designated as an analyst pursuant to the
Canada Water Act, the Yukon Waters Act or the Northwest Territories
Waters Act;
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Clause 179: New.
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Clause 180: Section 12 reads as follows:
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12. The Minister may, with the approval of the Governor in Council,
make an order exempting the Corporation as continued pursuant to
section 10 from the requirement to pay fees for the right to use waters
or deposit waste pursuant to a licence under the Northwest Territories
Waters Act.
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Clause 181: (1) The definition ``instream user'' in
section 2 reads as follows:
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``instream user'' means a person using waters, otherwise than as
described in paragraph (a), (b) or (c) of the definition ``use'', to earn
income or for subsistence purposes;
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(2) The definition ``territorial lands'' in section 2
reads as follows:
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``territorial lands'' means lands in the Northwest Territories that are
vested in Her Majesty in right of Canada or of which the Government
of Canada has power to dispose;
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(4) New.
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Clause 182: (1) Section 7 reads as follows:
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7. With the approval of the Governor in Council and subject to any
agreement entered into pursuant to section 5 or 11 of the Canada Water
Act, the Minister may, on behalf of the Government of Canada, enter
into an agreement with a provincial or territorial government providing
for the management of any waters
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(a) situated partially in the Northwest Territories and partially in a
province or the Yukon Territory; or
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(b) flowing between the Northwest Territories and a province or the
Yukon Territory.
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(2) New.
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Clause 183: (1) The relevant portion of subsection
8(1) reads as follows:
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8. (1) Except as authorized pursuant to the Dominion Water Power
Act, and subject to subsection (2), no person shall use, or permit the use
of, waters in a water management area except
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(2) The relevant portion of subsection 8(2) reads as
follows:
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(2) Subsection (1) does not apply in respect of the use of waters
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(b) by an instream user; or
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Clause 184: Subsection 9(1) reads as follows:
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9. (1) Except in accordance with the conditions of a licence or as
authorized by regulations made under paragraph 33(1)(n), no person
shall, subject to subsection (2), deposit or permit the deposit of waste
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(a) in any waters in a water management area; or
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(b) in any other place under conditions in which the waste, or any
other waste that results from the deposit of that waste, may enter any
waters in a water management area.
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Clause 185: Section 12 reads as follows:
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12. The objects of the Board are to provide for the conservation,
development and utilization of waters in a manner that will provide the
optimum benefit therefrom for all Canadians and for the residents of the
Northwest Territories in particular.
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Clause 186: (1) to (4) Subparagraph 14(4)(b)(v.1) is
new. The relevant portion of subsection 14(4) reads as
follows:
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(4) Where an application for a licence is made, the Board shall not
issue a licence unless the applicant satisfies the Board that
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(i) the use of waters or the deposit of waste proposed by the
applicant would not adversely affect, in a significant way, the use
of waters, whether in or outside the water management area to
which the application relates,
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(A) by any existing licensee, or
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(b) compensation that the Board considers appropriate has been or
will be paid by the applicant to any other applicant described in
clause (a)(i)(B) but to whom paragraph (a) does not apply, and to
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(i) licensees to whom paragraph (a) does not apply,
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who were such licensees, users, depositors, owners, occupiers or
holders, whether in or outside the water management area to which
the application relates, at the time when the applicant filed an
application with the Board in accordance with the regulations made
under paragraphs 33(1)(d) and (e), who would be adversely affected
by the use of waters or deposit of waste proposed by the applicant,
and who have notified the Board in response to the notice of the
application given pursuant to subsection 23(1) and within the time
period stipulated in that notice for making representations to the
Board;
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(5) Paragraph 14(4)(b.1) reads as follows:
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(b.1) in any case where the Board has been notified under subsection
78(1) of the Mackenzie Valley Resource Management Act, the
requirements of subsection 78(3) of that Act are satisfied;
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Clause 187: The relevant portion of subsection 15(2)
reads as follows:
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(2) In fixing the conditions of a licence, the Board shall make all
reasonable efforts to minimize any adverse effects of the issuance of the
licence on
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. . .
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who are such licensees, users, depositors, owners, occupiers or holders,
whether in or outside the water management area to which the
application relates, at the time when the Board is considering the fixing
of those conditions, who would be adversely affected by the use of
waters or deposit of waste proposed by the applicant, and who have
notified the Board in response to the notice of the application given
pursuant to subsection 23(1) and within the time period stipulated in
that notice for making representations to the Board.
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Clause 188: New.
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Clause 189: The relevant portion of subsection 21(1)
reads as follows:
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21. (1) The Board may, where satisfied that it would be in the public
interest, hold a public hearing in connection with any matter relating to
its objects, including, without limiting the generality of the foregoing,
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(b) an amendment to a type A licence pursuant to which neither the
use, flow or quality of waters nor the term of the licence would be
altered; and
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Clause 190: Section 29 reads as follows:
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29. (1) Where two licensees have licences permitting the use of
waters, the licensee who first filed an application with the Board in
accordance with the regulations made under paragraphs 33(1)(d) and
(e) is entitled to the use of waters in accordance with that licensee's
licence in precedence to any use of the waters by the other licensee.
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(2) Subsection (1) applies, with such modifications as the
circumstances require, in respect of any rights acquired by a licensee
through an amendment to the licensee's licence.
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(3) Subject to subsection (2), a licence that has been renewed or
assigned shall, for the purposes of this section, be deemed to be a
continuation of the original licence.
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Clause 191: (1) The relevant portion of subsection
31(1) reads as follows:
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31. (1) An applicant for a licence, or a licensee, may apply to the
Board for permission from the Minister to expropriate, in accordance
with the Expropriation Act, land or an interest in land in the Northwest
Territories, and where the Minister, on the recommendation of the
Board, is satisfied that
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(2) Subsection 31(2) reads as follows:
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(2) Where the Minister grants permission under subsection (1), the
applicant or licensee shall so advise the appropriate minister in relation
to Part I of the Expropriation Act.
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(3) Subsection 31(3.4) reads as follows:
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(3.4) Where the applicant or licensee, in mitigation of any injury or
damage caused or likely to be caused to lands by an expropriation,
undertakes
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(a) to abandon or grant, to the owner of the lands or a party interested
in the lands, any portion of its lands or of the land being taken or any
easement, servitude or privilege over or in respect of the land, and
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(b) to construct and maintain any work for the benefit of the owner
or interested person,
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and the owner or person interested accepts the undertaking, the
undertaking is deemed to be an undertaking referred to in paragraph
28(1)(b) of the Expropriation Act, and it may be enforced by the Board
as if it were a condition of the licensee's licence.
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Clause 192: New.
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Clause 193: Subsection 5.01(3) is new. Subsection
5.01(2) reads as follows:
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(2) Where a person occupies land in an area to which this Act applies
under a lawful right or title, other than an authorization under paragraph
5(1)(b) or an interest as defined in the Canada Petroleum Resources
Act, no person may enter on or use the surface of that land for a purpose
mentioned in subsection (1) without the consent of the occupier or,
where consent has been refused, except in accordance with the terms
and conditions of a decision of an arbitrator made in accordance with
the regulations.
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Clause 195: The relevant portion of section 40 reads
as follows:
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40. The Board may make rules
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(c) respecting the allowance of costs, including rules
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(ii) respecting the circumstances under which the Board 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.
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Clause 196: Subsection 76(1) reads as follows:
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76. (1) Notwithstanding section 18 of the Federal Court Act, the
Federal Court - Trial Division has concurrent original jurisdiction in
respect of relief referred to in paragraph 18(1)(b) of that Act, and the
Attorney General of Canada, the Territorial Minister or anyone directly
affected by the matter in respect of which relief is sought may make an
application for judicial review to the Supreme Court of the Yukon
Territory for any relief that the applicant could otherwise obtain in
respect of the Board by way of an application for an order of or in the
nature of mandamus, prohibition or certiorari or by way of an action for
a declaration or an injunction.
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Clause 197: (1) The definition ``instream user'' in
section 2 reads as follows:
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``instream user'' means a person using waters, otherwise than as
described in paragraph (a), (b) or (c) of the definition ``use'', to earn
income or for subsistence purposes;
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(2) New.
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Clause 198: The relevant portion of subsection 8(2)
reads as follows:
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(2) Subsection (1) does not apply in respect of the use of waters
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(b) by an instream user; or
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Clause 199: Section 12 reads as follows:
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12. The objects of the Board are to provide for the conservation,
development and utilization of waters in a manner that will provide the
optimum benefit therefrom for all Canadians and for the residents of the
Yukon Territory in particular.
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Clause 200: The relevant portion of subsection 14(4)
reads as follows:
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(4) Where an application for a licence is made, the Board shall not
issue a licence unless the applicant satisfies the Board that
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(b) compensation that the Board considers appropriate has been or
will be paid by the applicant to any other applicant described in
clause (a)(i)(B) but to whom paragraph (a) does not apply, and to
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who were such licensees, users, depositors, owners, occupiers or
holders, whether in or outside the water management area to which the
application relates, at the time when the applicant filed an application
with the Board in accordance with the regulations made under
paragraphs 33(1)(d) and (e), who would be adversely affected by the
use of waters or deposit of waste proposed by the applicant, and who
have notified the Board in response to the notice of the application given
pursuant to subsection 23(1) and within the time period stipulated in
that notice for making representations to the Board;
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Clause 201: The relevant portion of subsection 15(2)
reads as follows:
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(2) In fixing the conditions of a licence, the Board shall make all
reasonable efforts to minimize any adverse effects of the issuance of the
licence on
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who are such licensees, users, depositors, owners, occupiers or holders,
whether in or outside the water management area to which the
application relates, at the time when the Board is considering the fixing
of those conditions, who would be adversely affected by the use of
waters or deposit of waste proposed by the applicant, and who have
notified the Board in response to the notice of the application given
pursuant to subsection 23(1) and within the time period stipulated in
that notice for making representations to the Board.
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Clause 202: The relevant portion of subsection 21(1)
reads as follows:
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21. (1) The Board may, where satisfied that it would be in the public
interest, hold a public hearing in connection with any matter relating to
its objects, including, without limiting the generality of the foregoing,
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(b) an amendment to a type A licence pursuant to which neither the
use, flow or quality of waters nor the term of the licence would be
altered; and
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Clause 203: (1) Subsection 31(2) reads as follows:
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(2) Where the Minister grants permission under subsection (1), the
applicant or licensee shall so advise the appropriate minister in relation
to Part I of the Expropriation Act.
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(2) Subsection 31(3.4) reads as follows:
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(3.4) Where the applicant or licensee, in mitigation of any injury or
damage caused or likely to be caused to lands by an expropriation,
undertakes
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(a) to abandon or grant, to the owner of the lands or a party interested
in the lands, any portion of its lands or of the land being taken or any
easement, servitude or privilege over or in respect of the land, and
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(b) to construct and maintain any work for the benefit of the owner
or interested person,
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and the owner or person interested accepts the undertaking, the
undertaking is deemed to be an undertaking referred to in paragraph
28(1)(b) of the Expropriation Act, and it may be enforced by the Board
as if it were a condition of the licensee's licence.
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