Bill C-47

Head Office and Meetings

23. The head office of the Board is to be at Yellowknife or at any other location in the Northwest Territories that the Governor in Council designates.

24. (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

25. 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

26. The Board is an institution of public government but is not an agent of Her Majesty.

27. (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.

28. 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.

29. (1) Subject to any other Act of Parliament, territorial law or Tlicho law, the Board may obtain from any department, board or agency of the Government of Canada or the Government of the Northwest Territories or from the Tlicho Government any information in the possession of the department, board or agency or the Tlicho 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.

Languages

30. The Board must conduct its business in both of the official languages of Canada in accordance with the Official Languages Act and any directives of the Minister.

Financial Provisions

31. (1) The Board must 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 must maintain books of account and related records in accordance with accounting principles recommended by the Canadian Institute of Chartered Accountants or its successor.

(4) The Board must, 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 those accounting principles and must include in those statements any documents or information required in support of them.

(5) The auditor of the Board must audit the accounts, financial statements and financial transactions of the Board annually and must make a report of the audit to the Board and to the Minister.

Annual Report

32. The Board must, within three months after the end of each fiscal year, submit to the Minister a report on its activities in that year. The annual report must include 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 spec- ifies.

APPLICATIONS AND HEARINGS

Jurisdiction of the Board

33. (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 94(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 Tlicho 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 Tlicho Agreement and is unable to bring about a resolution of the dispute.

34. (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 55, 58, 70 and 73.

35. The Board is not authorized to make an order in respect of a matter that is not raised by either of the parties.

Hearings

36. The Board must 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) must take into account any material that it considers relevant, including Aboriginal traditional knowledge.

37. 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.

38. The Board may, at any stage of its proceedings, refer to the Supreme Court of the Northwest Territories 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.

39. 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 Tlicho lands or access to non-designated land, and

(ii) in relation to designated land, the applicable designated organization, in relation to Tlicho lands, the Tlicho 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 Tlicho 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 Tlicho 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 Tlicho lands, the applicable designated organization or the Tlicho Government, or, in relation to non-designated land, the owner or occupant to whom compensation is payable.

40. 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 94(b).

41. 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 Tlicho lands, in a community that is located in the Monfwi Gogha De Niitlee; and

(c) in relation to non-designated land, in the community in the Northwest Territories that is closest to that land.

Panels

42. An application for an order that the Board, in accordance with section 33, 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.

43. Subject to section 44, 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.

44. (1) If an application for, or a review of, an order deals with Gwich’in lands, Sahtu lands or Tlicho 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 must have been appointed by the Minister for reasons that include their being a resident of the applicable settlement area or the Monfwi Gogha De Niitlee, as the case may be, and having the knowledge required under subsection 13(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 must have been appointed by the Minister for reasons that include their meeting the residency requirement set out in paragraph 13(3)(b) and having the knowledge required under subsection 13(4) in relation to the settlement area; and

(b) the lands to which the application or review relates are located in the settlement area.

45. (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 44, 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.

46. Before making an order or a decision in respect of the review of an order, a panel must make any information that it intends to use available to the parties and provide them with a reasonable opportunity to respond to the information.

47. (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 TLICHO LANDS

Access Orders

Required Documents

48. 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 Tlicho Government, as the case may be.

Obligation of Board To Make Access Orders

49. (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 another 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 another Act of Parliament.

(2) The Board must, 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 another 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.

50. (1) The Board must, 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 Tlicho 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 Tlicho 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 Tlicho 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 Tlicho 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 Tlicho 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 Tlicho 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 Tlicho lands by Tlicho Citizens or the Tlicho 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 Tlicho 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 Tlicho Citizens and the Tlicho First Nation, as the case may be.

51. (1) The Board must, 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.

52. (1) The following definitions apply in this section.

“navigable waterways” means any portion of a navigable river overlying Gwich’in lands, Sahtu lands or Tlicho lands and other navigable bodies of water overlying those lands that can be entered from a navigable river.

“portages” means routes on Gwich’in lands, Sahtu lands or Tlicho lands for carrying boats and goods between navigable waterways.

“waterfront lands” means the 30.48 metre wide area of Gwich’in lands or Sahtu lands, or the 31 metre wide area of Tlicho 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 Tlicho Agreement, of a navigable waterway.

(2) The Board must, 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 Tlicho 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 Tlicho 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 Tlicho 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 Tlicho 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 Tlicho lands by Tlicho Citizens or the Tlicho 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 Tlicho Agreement.

53. (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 must, 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 another Act of Parliament or a territorial law — 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.

54. (1) In this section, “existing right” means a right of access to Tlicho 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 Tlicho 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 Mac- kenzie Valley Land and Water Board before the day on which the Tlicho Land Claims and Self-Government Act came into force.

(2) The Board must, on application, make an order setting out the terms and conditions on which an individual or entity may access Tlicho 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 Tlicho Land Claims and Self-Government Act 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 Tlicho Government.

Terms and Conditions

55. If the parties to a hearing have concluded an agreement regarding terms and conditions of access, the Board must include those terms and conditions in the access order.

56. (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 Tlicho 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, Tlicho Citizens or the Tlicho 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.

57. 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.

Compensation

58. (1) If the parties to a hearing have concluded an agreement regarding the compensation to be paid in respect of access, the Board must set out the amount of that compensation in the access order.

(2) If provided for in the agreement, the Board must also set out the manner of payment of the compensation in the access order.

59. (1) If the parties to a hearing have not concluded an agreement regarding the compensation to be paid in respect of access, the Board must determine the amount of the compensation and, in so doing, must 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 Tlicho 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 Tlicho 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 Tlicho First Nation, as the case may be;

(h) any adverse effect on other Gwich’in lands, Inuvialuit lands, Sahtu lands or Tlicho lands; and

(i) any reasonable expenses that may be incurred by a designated organization, the Tlicho Government or an individual or entity occupying the land on account of the costs of an inspection referred to in subparagraph 56(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.

60. 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

61. 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 Tlicho 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 Tlicho 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

62. (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 must 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

63. An application for an order under section 64 or 65 must be accompanied by a copy of the most recent written offer of compensation, if any, made to the applicable designated organization or the Tlicho Government, as the case may be.

64. (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 another Act of Parliament or a territorial law. For greater certainty, “public utility” does not include the transmission of hydrocarbons by pipelines.

(2) The Board must, 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 Tlicho Government or Tlicho Citizens, as the case may be, for damage to Gwich’in lands, Sahtu lands or Tlicho lands, or for interference with the use and peaceful enjoyment of Gwich’in lands by Gwich’in participants, Sahtu lands by Sahtu participants or Tlicho lands by Tlicho Citizens or the Tlicho 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 Tlicho 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 Tlicho Government, as the case may be, have been unable to agree on the amount of compensation.

65. If compensation is payable to a designated organization or the Tlicho Government under an access order of the Board, including one that is no longer in effect, the Board must, on application by the designated organization or the Tlicho Government, make an order setting out the amount of additional compensation to be paid to the designated organization or the Tlicho Government, as the case may be, for any damage that was caused to designated land or Tlicho 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.

66. (1) In determining the amount of compensation to be paid for the purpose of an order made under section 64 or 65, the Board must consider all relevant factors, including those listed in paragraphs 59(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.

67. 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

68. 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

69. (1) The Board must, 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 another 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, issued under the Canada Oil and Gas Land Regulations.

Terms and Conditions

70. If the parties to a hearing have concluded an agreement regarding terms and conditions of access, the Board must include those terms and conditions in the access order.

71. (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.

72. 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

73. (1) If the parties to a hearing have concluded an agreement regarding the compensation to be paid in respect of access, the Board must set out the amount of that compensation in the access order.

(2) If provided for in the agreement, the Board must also set out the manner of payment of the compensation in the access order.

74. (1) If the parties to a hearing have not concluded an agreement regarding the compensation to be paid in respect of access, the Board must determine the amount of the compensation and, in so doing, must 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 71(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 must 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.

75. 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

76. (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

77. (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 must 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

78. An application for an order under section 79 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.

79. 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 must, 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.

80. (1) In determining the amount of compensation to be paid for the purpose of an order made under section 79, the Board must consider all relevant factors, including those listed in paragraphs 74(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 must also consider the factors listed in paragraphs 74(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.

81. 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

82. The Board may, by order, award costs on or before the final disposition of a matter, in accordance with the rules made under section 95 or, in the absence of any such rules, in its discretion.

83. The Board must 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.

84. Subject to sections 89 to 92, 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.

85. The Board must, as soon as feasible, provide copies of any order or decision referred to in section 83 to the parties and any applicable regulatory authority.

86. 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.

87. 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.

88. An order of the Board may be made an order of the Supreme Court of the Northwest Territories 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

89. (1) The Board must, 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 must 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, Tlicho 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, Tlicho Citizens or the Tlicho First Nation or the owner or occupant of non-designated land, as the case may be.

90. (1) The Board must 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 must, 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 must 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, Tlicho 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, Tlicho Citizens or the Tlicho First Nation or the owner or occupant of non-designated land, as the case may be.

Termination of Access Orders

91. (1) The Board must, 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.

92. The Board must, 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 of the Northwest Territories

93. Despite section 18 of the Federal Courts Act, the Supreme Court of the Northwest Territories 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

94. The Board must make rules — consistent with the Agreements — respecting

(a) the conduct of negotiations for the purposes of subsection 33(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.

95. 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.

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

97. (1) The Board must 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 minister of the Northwest Territories designated by the Commissioner of the Northwest Territories for the purposes of this paragraph, designated organizations and the Tlicho 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 must 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 must

(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 Canada Gazette that the rule has been made, indicating the newspaper in which it has been published.

Public Registry

98. (1) The Board must maintain a public registry on its Internet site. The Board must include the following in that registry:

(a) a list of its members and alternate members;

(b) all bylaws made under section 25;

(c) the annual report referred to in section 32;

(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 83; and

(e) all rules made under sections 94 and 95.

(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 94(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

99. The Governor in Council may make regulations

(a) specifying types of agreements for the purpose of section 7;

(b) defining “resident” for the purposes of subsection 12(2) or 13(1) or (3), section 14 or 44 or subsection 45(1), as the case may be;

(c) specifying what constitutes a conflict of interest for the purpose of section 21;

(d) fixing, for the purposes of sections 60, 67, 75 and 81, 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 61 and subsection 76(2);

(f) establishing conditions under which documents may be inspected by the public under subsection 98(2); and

(g) generally, for carrying out the purposes and provisions of this Act.

TRANSITIONAL PROVISIONS

100. This Act does not apply to any matter that is, before the day on which section 8 comes into force, the subject of a submission to arbitration, as referred to in 6.3.2 of the Gwich’in Agreement and 6.3.2 of the Sahtu Agreement, or a request for arbitration, as referred to in 6.5.1 of the Tlicho Agreement.

101. This Act does not apply to any matter that is, before the day on which section 8 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.

Related Amendments to the Yukon Surface Rights Board Act

12. Section 10 of the Yukon Surface Rights Board Act is amended by adding the following after subsection (2):

(2.1) If the appointment of a member is terminated under subsection (2) before they have made a decision in a matter for which a hearing is held, they may, with the consent of the parties to the hearing, continue to perform their duties and 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).

13. Section 11 of the Act is amended by adding the following after subsection (2):

(2.1) If the term of a member expires before they have made a decision in a matter for which a hearing is held, they may, in accordance with the Board’s by-laws or, in the absence of an applicable provision in the by-laws, the direction of the Chairperson, continue to perform their duties and 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.

14. The Act is amended by adding the following after section 15:

15.1 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.

15. Section 18 of the Act is amended by striking out “and” at the end of paragraph (b) and by adding the following after that paragraph:

(b.1) in the case of a member whose term has expired, respecting the member’s ability to continue to perform their functions in relation to a matter for which a hearing is held; and

16. Section 23 of the Act is amended by adding the following after subsection (4):

(5) The auditor of the Board shall audit the accounts, financial statements and financial transactions of the Board annually and shall make a report of the audit to the Board and to the Minister.

Consequential Amendments

Access to Information Act

17. Schedule I to the Access to Information Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:

Northwest Territories Surface Rights Board

Canada Oil and Gas Operations Act

18. (1) Subsection 5.01(2) of the Canada Oil and Gas Operations Act is amended by striking out “and” at the end of paragraph (a) and by adding the following after that paragraph:

(a.1) in the case of land in the Northwest Territories, an order made by the Northwest Territories Surface Rights Board under the Northwest Territories Surface Rights Board Act; and

(2) Subsection 5.01(3) of the Act is replaced by the following:

(3) Subsections (1) and (2) do not apply in respect of Inuit-owned land as defined in subsection 2(1) of the Nunavut Waters and Nunavut Surface Rights Tribunal Act, designated land as defined in subsection 2(1) of the Northwest Territories Surface Rights Board Act or Tlicho lands, which has the same meaning as in 1.1.1 of the Tlicho Agreement as defined in subsection 2(1) of that Act.

Privacy Act

19. The schedule to the Privacy Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:

Northwest Territories Surface Rights Board

Coming into Force

20. Sections 8 and 33 to 93 of the Northwest Territories Surface Rights Board Act and section 18 of this Act come into force 24 months after the day on which this Act receives royal assent or on any earlier day that may be fixed by order of the Governor in Council.