Nunavut Land Claims Agreement
INUIT WATER RIGHTS
INUIT WATER RIGHTS
In this Article:
"geothermal resources" means steam, water and water vapour heated by the natural heat of the earth and all substances dissolved in the steam, water or water vapour;
"use of water" includes the use of water power and geothermal resources.
RIGHTS OF INUIT
In this Article, any rights vested in a DIO are vested in trust for the use and benefit of Inuit.
Subject to the Agreement and any exception identified in the property descriptions of Inuit Owned Lands, the DIO shall have the exclusive right to the use of water on, in, or flowing through Inuit Owned Lands.
Notwithstanding Section 20.2.2, any use of water on, in, or flowing through InuitOwned Lands must comply with the terms of Article 13.
Subject to Section 20.5.1, the DIO shall have the right to have water flow throughInuit Owned Lands substantially unaffected in quality and quantity and flow.
No project or activity within the Nunavut Settlement Area which may substantially affect the quality of water flowing through Inuit Owned Lands, or the quantity of such water, or its flow, shall be approved by the NWB unless the applicant for a licence has entered into a compensation agreement with the DIO for any loss or damage which may be caused by the change in quality, quantity or flow of the water or the NWB has made a determination in accordance with Section 20.3.2.
The applicant and the DIO shall negotiate in good faith for the purpose of reaching an agreement on compensation referred to in Section 20.3.1, but in the event that they are unable to reach agreement, either may refer the determination of the appropriate compensation to the NWB, and the decision of the NWB shall be binding.
In determining the appropriate compensation for loss or damage under Section20.3.2, the NWB shall take into account the following:
the adverse effects of the change in quality, quantity or flow of water on Inuit Owned Lands, owned or used by the person or group affected;
the nuisance, inconvenience, disturbance or noise caused by the change in quality, quantity or flow of water to the person or group affected;
the adverse effects of the change in quality, quantity or flow of water in combination with existing water uses;
the cumulative effect of the change in quality, quantity or flow of water in combination with existing water uses;
the cultural attachment of Inuit to Inuit Owned Lands, including water, adversely affected by the change in quality, quantity or flow of water;
the peculiar and special value of Inuit Owned Lands, including water, affected by the change in quality, quantity or flow of water; and
interference with Inuit rights, whether derived from this Article or some other source.
Unless otherwise agreed by the DIO and the applicant, all awards shall provide for periodic payments and a periodic review for the purpose of adjustments, having due regard for the nature and duration of the water use. Costs of the DIO incurred in the determination process under Section 20.3.2 shall be borne by the applicant for water use unless otherwise determined by the NWB.
PROJECTS OUTSIDE THE NUNAVUT SETTLEMENT AREA
Where a project or activity occurring outside the Nunavut Settlement Area but within the boundaries of the Northwest Territories as they exist immediately prior to the date of ratification of the Agreement may substantially affect the quality of water flowing through Inuit Owned Lands, or the quantity of such water, or its flow, the project or activity shall not be approved by the competent water authority unless the applicant has entered into a compensation agreement with the DIO for any loss or damage that may be caused by that change in quality, quantity or flow, or unless such compensation has been determined in accordance with Section20.4.2.
The applicant and the DIO shall negotiate in good faith for the purpose of reaching an agreement on compensation referred to in Section 20.4.1, but in the event that they are unable to reach agreement, either may refer the determination of the appropriate compensation for a joint determination by the NWB and the competent water authority, and the joint decision shall be binding. The decision shall be governed by Sections 20.3.3 and 20.3.4. When the NWB and the competent water authority are unable to make a joint determination, compensation shall be determined by the judge of the appropriate court.
Notwithstanding Section 20.4.1 the competent water authority may approve a project or activity at the time a reference is made for joint determination on compensation pursuant to Section 20.4.2.
Subject to the compensation provisions herein, the NWB shall retain the jurisdiction to approve water uses throughout the Nunavut Settlement Area.
Nothing in these provisions shall be interpreted so as to derogate from or to allow the attaching of conditions or charges to the exercise of public rights of navigation, rights of innocent public passage on water, or use of water for emergency purposes or the ability to use water for domestic use as defined in the Northern Inland Waters Act.
Where an operator working on Inuit Owned Lands has obtained from the NWB a right to use water, the operator shall not be required to obtain the consent of the DIO to use that water, but the use shall be subject to the payment of compensation where required by Sections 20.3.1 to 20.3.3, and existing Inuit water uses will take priority over the operator's requirements for water in Inuit Owned Lands.
For greater certainty, an operator who has obtained a water right may still be required to obtain a right of way agreement and pay compensation for that right of way.
This Article shall be subject to Section 21.3.3.
For greater certainty Sections 20.2.4 and Parts 3 and 4 shall apply where a body of water delineates a boundary between Inuit Owned Lands and other lands and that body of water is not located entirely on Inuit Owned Lands.
The DIO shall have standing at all times in a court of competent jurisdiction to seek a determination of the authority of any person to use water in the Nunavut Settlement Area or to change the quality, quantity or flow of water.