Tlicho Land Claims and Self-Government (S.C. 2005, c. 1)
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Assented to 2005-02-15
1998, c. 25AMENDMENTS TO THE MACKENZIE VALLEY RESOURCE MANAGEMENT ACT
38. Section 68 of the Act is repealed.
39. Section 73 of the Act is renumbered as subsection 73(1) and is amended by adding the following:
Marginal note:Wildlife harvesting and traditional use — Tlicho citizens
(2) Despite sections 8 and 9 of the Northwest Territories Waters Act — and subject to any applicable Tlicho laws and, in relation to waters that are on settlement lands, any limitations under the applicable land claim agreement that are of the same type as those that apply in relation to waters on Tlicho lands — Tlicho citizens have the right to use water in the part of Monfwi Gogha De Niitlee that is in the Northwest Territories without a licence, for purposes of wildlife harvesting under 10.1.1 of chapter 10 of the Tlicho Agreement, for purposes of transportation related to such wildlife harvesting and for heritage, cultural or spiritual purposes of the Tlicho First Nation.
40. The portion of section 76 of the Act before paragraph (a) is replaced by the following:
Marginal note:Issuance, amendment or renewal of licences, etc.
76. The Gwich’in Land and Water Board or the Sahtu Land and Water Board may issue, amend or renew a licence, permit or authorization where the use of land or waters or the deposit of waste proposed by the applicant would, in the opinion of the board, interfere with a first nation’s rights under section 75, if the board is satisfied that
41. Section 77 of the Act and the heading before it are replaced by the following:
Compensation — Gwich’in and Sahtu First Nations
Marginal note:Conditions for licence
77. The Gwich’in Land and Water Board or the Sahtu Land and Water Board may not issue, amend or renew a licence pursuant to section 76 unless
(a) the applicant and the first nation enter into an agreement to compensate the first nation for any loss or damage resulting from any substantial alteration to the quality, quantity or rate of flow of waters when on or flowing through its first nation lands, or waters adjacent to its first nation lands; or
(b) the applicant or the first nation applies to the board for a determination pursuant to subsection 79(1).
Marginal note:1998, c. 15, par. 48(c); 2000, c. 32, s. 54
42. Subsection 78(1) of the Act is replaced by the following:
Marginal note:Application to water authority
78. (1) If the Gwich’in Land and Water Board or the Sahtu Land and Water Board determines that a use of waters or a deposit of waste that is proposed, in an application made to a water authority, to be carried out in
(a) an area of the Northwest Territories or Nunavut outside the board’s management area, or
(b) a park to which the Canada National Parks Act applies, or lands acquired pursuant to the Historic Sites and Monuments Act, in the board’s management area
would be likely to substantially alter the quality, quantity or rate of flow of waters when on or flowing through first nation lands of the Gwich’in or Sahtu First Nation or waters adjacent to those first nation lands, the board shall notify the water authority in writing of its determination.
43. (1) Subsection 79(1) of the Act is replaced by the following:
Marginal note:Referral of compensation to Board
79. (1) If a compensation agreement referred to in section 77 or 78 is not entered into within the period allowed by the rules of the Gwich’in Land and Water Board or the Sahtu Land and Water Board, as the case may be, the applicant or the first nation may apply to the board for a determination of compensation.
(2) Subparagraph 79(2)(a)(i) of the English version of the Act is replaced by the following:
(i) the first nation’s use of waters when on or flowing through its first nation lands or waters adjacent to its first nation lands, and
44. The Act is amended by adding the following after section 79:
Compensation — Tlicho First Nation
Marginal note:Conditions for licence
79.1 The Wekeezhii Land and Water Board may not issue, amend or renew a licence for the use of waters or the deposit of waste if, in its opinion, that use or deposit is likely to substantially alter the quality, quantity or rate of flow of waters when on or flowing through Tlicho lands or waters adjacent to Tlicho lands unless
(a) the Board is satisfied that there is no alternative that could reasonably satisfy the requirements of the applicant and that there are no reasonable measures by which the applicant could avoid the alteration; and
(b) the applicant has entered into an agreement with the Tlicho Government to compensate the Tlicho First Nation for any loss or damage that may be caused by the alteration, or the applicant or the Tlicho Government has applied to the Board under subsection 79.3(1) for a determination of compensation for that loss or damage.
Marginal note:Application to water authority
79.2 (1) If the Wekeezhii Land and Water Board determines that a use of waters or a deposit of waste that is proposed, in an application made to a water authority, to be carried out in
(a) Nunavut or an area of the Northwest Territories outside Wekeezhii, or
(b) a park to which the Canada National Parks Act applies, or lands acquired pursuant to the Historic Sites and Monuments Act, in Wekeezhii
would be likely to substantially alter the quality, quantity or rate of flow of waters when on or flowing through Tlicho lands or waters adjacent to Tlicho lands, the Board shall notify the water authority in writing of its determination.
Marginal note:Access to information
(2) A water authority shall provide the Board with any information in its possession that the Board requires in order to make a determination under subsection (1).
Marginal note:Conditions for authorization
(3) Despite any other Act, a water authority that is notified by the Board under subsection (1) may not authorize the proposed use of waters or deposit of waste unless
(a) the applicant and the Tlicho Government have entered into an agreement to compensate the Tlicho First Nation for any loss or damage that may be caused by the alteration; or
(b) the applicant or the Tlicho Government applies to the Board under subsection 79.3(1) for a determination.
Marginal note:Referral of compensation to Wekeezhii Board
79.3 (1) If a compensation agreement referred to in paragraph 79.1(b) or 79.2(3)(a), as the case may be, is not entered into, the applicant or the Tlicho Government may, after having participated in mediation under chapter 6 of the Tlicho Agreement, apply to the Wekeezhii Land and Water Board for a determination of compensation.
Marginal note:Determination of compensation
(2) On an application under subsection (1), the Board shall determine the compensation payable in respect of the proposed use of waters or deposit of waste, taking into consideration
(a) the effect of the proposed use or deposit on
(i) the use by Tlicho citizens of waters when on or flowing through Tlicho lands, or waters adjacent to Tlicho lands,
(ii) Tlicho lands, taking into account any cultural or special value of those lands to the Tlicho First Nation, and
(iii) wildlife harvesting carried on by Tlicho citizens;
(b) the nuisance or inconvenience, including noise, caused by the proposed use or deposit to Tlicho citizens on Tlicho lands; and
(c) any other factor that the Board considers relevant in the circumstances.
Marginal note:Form of compensation
(3) The compensation may be in the form of a lump sum payment or periodic payments or non-monetary compensation, including replacement of, or substitution for, damaged or lost property or relocation of Tlicho citizens or their property, or any combination of those forms of compensation.
45. (1) Subsection 80(1) of the French version of the Act is replaced by the following:
Marginal note:Obligation de fournir les matériaux — premières nations des Gwich’in et du Sahtu
80. (1) Les premières nations des Gwich’in ou du Sahtu sont tenues, sur demande, de fournir aux ministères et organismes des gouvernements fédéral et territorial ou à toute personne les matériaux de construction — sable, gravier, argile et autres — se trouvant sur leurs terres, et d’y donner accès, dans les cas où il n’existe aucune autre source d’approvisionnement accessible, sans difficulté excessive, dans la région avoisinante.
(2) The portion of subsection 80(3) of the Act before paragraph (a) is replaced by the following:
Marginal note:Reference to Board
(3) On application by the person or department or agency requesting the supply or access, the Gwich’in Land and Water Board or the Sahtu Land and Water Board, as the case may be, shall
46. The Act is amended by adding the following after section 80:
Marginal note:Duty to supply — Tlicho Government
80.1 (1) The Tlicho Government shall supply, and permit access to, sand, gravel, clay and like construction materials situated on Tlicho lands to any person that requests it, including any department or agency of the federal or territorial government or any local government of a Tlicho community.
Marginal note:Exception
(2) Subsection (1) does not apply if the materials are to be used on lands other than Tlicho lands, unless no alternate source of supply is reasonably available in an area closer to the lands where the materials are to be used.
Marginal note:Compensation — Tlicho Government
(3) The Tlicho Government is entitled to be paid for the value of materials supplied under subsection (1) and for the exercise of a right of access to the materials under that subsection, unless the materials are to be used for a public purpose on Tlicho lands or in a Tlicho community or for a public road contiguous to Tlicho lands or to a Tlicho community.
Marginal note:Reference to Wekeezhii Land and Water Board
(4) On application by any person, department, agency or government requesting the supply of, or access to, materials under subsection (1) and after the applicant has participated in mediation under chapter 6 of the Tlicho Agreement, the Wekeezhii Land and Water Board shall
(a) determine, for the purpose of subsection (2), whether an alternate source of supply is reasonably available in an area closer to the lands where the materials are to be used;
(b) determine, for the purpose of subsection (3), whether the materials are to be used for a public purpose on Tlicho lands or in a Tlicho community or for a public road contiguous to Tlicho lands or a Tlicho community;
(c) resolve any dispute concerning terms or conditions of supply or access, excluding the amount to be paid under subsection (3); or
(d) resolve any dispute concerning conflicting uses of materials referred to in subsection (1) by the applicant and by the Tlicho Government or Tlicho citizens.
Marginal note:Reference to Board by Tlicho Government
(5) In the case of a dispute referred to in paragraph (4)(d), an application for its resolution may also be made to the Board by the Tlicho Government after it has participated in mediation under chapter 6 of the Tlicho Agreement.
47. Sections 82 and 83 of the Act are replaced by the following:
Marginal note:Consultation with first nations and Tlicho Government
82. (1) The federal Minister shall consult the Gwich’in and Sahtu First Nations and the Tlicho Government with respect to the amendment of the Northwest Territories Waters Act or regulations made under that Act.
Marginal note:Consultation with boards
(2) The federal Minister shall consult the boards with respect to the amendment of this Act or the Northwest Territories Waters Act or the making or amendment of any instrument pursuant to this Act or that Act.
Policy Directions
Marginal note:Minister’s policy directions to board
83. (1) The federal Minister may, after consultation with a board, give written policy directions binding on the board with respect to the exercise of any of its functions under this Part. The federal Minister shall also consult the Tlicho Government before giving such written policy directions to the Wekeezhii Land and Water Board.
Marginal note:Policy directions by the Tlicho Government to the Wekeezhii Board
(2) The Tlicho Government may, after consultation with the Wekeezhii Land and Water Board and the federal Minister, give written policy directions with respect to the exercise of any of its functions under this Part in relation to the use of Tlicho lands. Policy directions shall be binding on the Board to the extent that compliance with them does not require the Board to exceed its approved budget.
Marginal note:Limitation
(3) Except as provided by subsection (4), policy directions do not apply in respect of any application that, at the time the directions are given, is pending before a board or has been approved by a board and is awaiting approval under section 81.
Marginal note:Exception
(4) Policy directions apply in respect of an application referred to in subsection (3) if their non-application could result in the inconsistency of a licence, permit or authorization with another Act or with a regulation or order made under another Act.
Marginal note:Conflict between policy directions
(5) If there is a conflict between policy directions given by the federal Minister under subsection (1) and policy directions given by the Tlicho Government under subsection (2), the policy directions given under subsection (2) prevail to the extent of the conflict.
Marginal note:Conflict between legislation and policy directions
(6) If there is a conflict between policy directions given by the federal Minister or the Tlicho Government under this section and the provisions of any Act of Parliament, any regulations made under an Act of Parliament or any territorial law, those provisions prevail to the extent of the conflict.
48. Section 85 of the Act is amended by adding the following after subsection (2):
Marginal note:Notice to Tlicho Government
(2.1) An inspector shall, if it is reasonable to do so, give the Tlicho Government prior notice of entry by the inspector on Tlicho lands.
49. Section 89 of the Act is amended by adding the following after subsection (1):
Marginal note:Notice to Tlicho Government by water inspector
(1.1) An inspector designated under the Northwest Territories Waters Act shall, if it is reasonable to do so, give the Tlicho Government prior notice of entry on Tlicho lands.
50. The portion of section 90 of the Act before paragraph (a) is replaced by the following:
Marginal note:Regulations respecting the use of land
90. The Governor in Council may, following consultation by the federal Minister with first nations and the Tlicho Government, make regulations respecting the protection, control and use of lands in the Mackenzie Valley and, in particular, may make regulations
51. The Act is amended by adding the following after section 90:
Marginal note:Prohibition — Tlicho lands
90.1 Even if the regulations do not require a permit or authorization under Part 3 or 4 for a particular use of land, no person shall use Tlicho lands without such a permit or authorization if one is required by a Tlicho law for uses of that type.
Marginal note:Exemption for use of land in Tlicho communities
90.2 Despite the regulations, a permit or authorization under Part 3 or 4 for a particular use of land in a Tlicho community is not required if the local government of that community has enacted a bylaw providing that one is not required for uses of that type.
52. Paragraph 91(b) of the Act is replaced by the following:
(b) respecting the determination of matters in dispute under section 80 or 80.1.
53. (1) Subsection 92(1) of the Act is replaced by the following:
Marginal note:Principal offences
92. (1) Every person who contravenes section 90.1, any provision of the regulations, any condition of a permit or an order of an inspector under subsection 86(1) or (2) is guilty of an offence and liable on summary conviction to a fine not exceeding $15,000 or to imprisonment for a term not exceeding six months, or to both.
(2) Subsection 92(2) of the English version of the Act is replaced by the following:
Marginal note:Reparation
(2) In addition to the penalty provided by subsection (1), a court that convicts a person of using land without a permit may, taking into account the nature of the offence and the circumstances of its commission, order the person to take any measures that it considers reasonable in order to repair or limit any damage resulting from the act or omission that constituted the offence.
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