ENTRY AND ACCESS
In this Article:
"foreshore" means that stretch of land between the edge of the water and the ordinary high water mark;
"navigable" means capable of navigation by boat or other craft for commercial or non-commercial purposes;
"surface rights" means, for the purpose of Section 21.7.11,
rights relating to land other than an interest in minerals, or
rights in respect of specified substances;
"third party interest" means, for the purpose of Sections 21.7.1 to 21.7.6, a right granted under the Territorial Lands Act or Public Lands Grants Act that is enforceable against the Crown, but does not include a prospecting licence in respect of Inuit Owned Lands held in the form referred to in Sub-section 19.2.1(a). For greater certainty, "third party interest" includes a land use permit and a permit to prospect;
use of water includes the use of water power.
ACCESS ONLY WITH CONSENT
Except where otherwise provided in the Agreement persons other than Inuit may not enter, cross or remain on Inuit Owned Lands without the consent of the DIO.
There shall be a public right of access for the purpose of travel by water, including travel associated with development activity making use of the strip incidental to travel by water, and for recreation to a 100 foot (approximately 30.5 metre) strip of Inuit Owned Lands bounding the sea coast, navigable rivers, navigable lakes that can be entered from the said rivers. The said strip shall be measured from the ordinary high water mark of the sea coast and the said navigable rivers, lakes and water bodies. The right of access includes access to the foreshore adjacent to the said strip.
A member of the public exercising the right of access referred to in Section 21.3.1 may harvest wildlife other than for commercial purposes, but subject always to laws of general application and Article 5.
A member of the public may harvest wildlife in the waters referred to in Section 21.3.1, but subject always to laws of general application and Article 5.
exercising the right of access referred to in Section 21.3.1; or
harvesting wildlife pursuant to Section 21.3.2,
shall engage in any development activity, or establish camps or structures other than for merely casual or temporary purposes, on the said strip.
Where the DIO requires exclusive possession, the right of access referred to in Section 21.3.1, the right to harvest referred to in Section 21.3.2, and the right to cross Inuit Owned Lands referred to in Section 21.3.9 may be removed with the agreement of the DIO and Government.
Where the DIO and Government agree, the right to harvest referred to in Section21.3.3 may be removed.
A member of Parliament, the Legislative Assembly, or any municipal council or regional government, or a candidate for election to such bodies, or a person accompanying and assisting any such member or candidate, may enter on Inuit Owned Lands for the purpose of campaigning for an election.
A member of the public may enter and remain on Inuit Owned Lands for emergency purposes.
Members of the public may cross Inuit Owned Lands for the purpose of personal or casual travel, such as to go to or from their place of work or to or from a place of recreation. Whenever possible, crossings shall take place on routes designated by the DIO. The right to cross shall include the right to make any necessary stops.
There shall be a public right of access, as described in Schedule 21-1, on the InuitOwned Lands described in that Schedule.
With the consent of the DIO, persons conducting research for public knowledge shall:
have the same right of access to Inuit Owned Lands as agents, employees and contractors of Government; or
have a right of access to Inuit Owned Lands in accordance with terms and conditions imposed by the DIO, other than the payment of fees.
The right of access to Inuit Owned Lands set out in this Part is subject to the conditions that there be:
no significant damage caused;
no mischief committed; and
no significant interference with Inuit use and quiet enjoyment of the lands.
Persons exercising rights under this Part shall be:
liable for damages caused to the lands; and
deemed to be trespassers and may be removed from the land, if they fail to comply with the conditions of this Article.
The rights of access to Inuit Owned Lands under this Part are not subject to the payment of any fee, or any term or condition, except as provided in this Part.
MILNE INLET TOTE ROAD PUBLIC ACCESS EASEMENT
There shall be a public right of access, as described in Schedule 21-2, on the InuitOwned Lands described in that Schedule.
Agents, employees and contractors of Government and members of the Canadian Forces and members of the R.C.M.P. shall have the right, in accordance with this Article, to enter, to cross and to remain on Inuit Owned Lands and water on Inuit Owned Lands to carry out legitimate government purposes relating to the lawful delivery and management of their programs and enforcement of laws.
Should Government, the Canadian Forces or the R.C.M.P. require continuing use or occupancy of Inuit Owned Lands for more than two years, including use for unmanned facilities, the DIO may require Government to obtain an interest in the land.
Agents, employees and contractors of the user described in an item in Schedule 21-3 shall have a right to enter, cross and remain on the area identified in the property description in respect of the parcels of Inuit Owned Lands listed in that item, for the purpose specified in that item, including the right to do what is necessary for that purpose.
The right in Sections 21.5.1 and 21.5.3 shall be subject to Sub-section 21.3.12(b)and Section 21.3.13.
In a case where more than insignificant damage may be caused to the land, or where there may be more than insignificant interference with Inuit use and quiet enjoyment of the land, Government shall consult the DIO and seek its agreement regarding the procedures for exercising government access under Sections 21.5.1 and 21.5.3. Where agreement cannot be achieved, the matter shall be referred to the Arbitration Board for the determination of such procedures pursuant to Article 38. Activities identified in Schedule 21-4 shall not be subject to the requirements of this Section.
Without limiting the generality of this Section, procedures required under Section 21.5.5 for exercising government access shall ensure that:
environmental protection measures are consistent with the provisions of the Agreement;
information is provided; and
location, time and duration of access is addressed.
Government personnel need access to Inuit Owned Lands for the purpose of wildlife management and research. Notwithstanding Section 21.5.1, access to Inuit Owned Lands by Government personnel for the purposes of wildlife management and wildlife research shall be subject to the approval of the NWMB subsequent to consultation with the appropriate RWO.
The exercise of the right in Section 21.5.1 shall not be subject to the provision of a security bond, but may be subject to a fee if provided for in legislation.
In the event that any person exercising access under Section 21.5.1 causes damage to Inuit Owned Lands, and Government and the DIO are unable to agree on compensation for damages, the matter shall be referred to the Arbitration Board, for the determination of liability and fixing of appropriate compensation pursuant to Article 38.
The Department of National Defence (DND) shall have no greater rights to conduct military manoeuvres, including exercises and movements, on Inuit Owned Lands than it has with respect to other non-public lands under generally applicable legislation. For greater certainty, this section shall prevail over Sections 21.5.11 and 21.5.12.
The Minister of National Defence may authorize access to Inuit Owned Lands and water on Inuit Owned Lands for the execution of manoeuvres by the Canadian Forces pursuant to Section 257 of the National Defence Act and with the exception of Section 21.5.10 nothing in this Article applies to or affects such access authorized by the Minister of National Defence.
Other than access for those manoeuvres referred to in Section 21.5.11, access onto and across Inuit Owned Lands and water on Inuit Owned Lands for each manoeuvre shall only occur after the negotiation and conclusion of an agreement with the DIO dealing with contact persons, consultation mechanisms and timing thereof and compensation for damages, which agreement may be amended from time to time. Land use fees shall not be charged.
Reasonable advance notice, in Inuktitut, of military manoeuvres shall be given byDND to the inhabitants of any area affected.
The rights of access to Inuit Owned Lands under this Part, except under Section 21.5.2, are not subject to the payment of any fee, or any term or condition, except as provided in this Part.
In this Part, "Government" includes municipal corporations.
SAND AND GRAVEL
Notwithstanding anything in Sub-section 19.2.1(b), if Government requires sand and gravel and other like construction materials from Inuit Owned Lands for public purposes, but the DIO refuses to permit Government to take the said materials, Government may apply to the Tribunal for an entry order enabling the removal of such material.
The Tribunal shall grant an entry order if, and only if, it determines that:
the materials are required for public purposes; and
no alternative supply is reasonably available.
If an entry order is granted, Government shall pay the DIO, for the materials removed, the greater of:
$1.00 per cubic metre, valued at the date of ratification of the Agreement and indexed by the Final Domestic Demand Implicit Price Index; or
the royalty rate imposed by the Crown, as amended from time to time, on the extraction of such materials from Crown lands.
The Tribunal shall determine the terms and conditions for access and compensation for access, and such compensation shall be determined in accordance with Section21.8.3. The calculation of compensation shall not take into account any amount mentioned in Section 21.6.3, or the payment of any entry fee required by legislation.
An entry order shall include terms and conditions to minimize the damage and interference with Inuit use, and shall also provide that Government rehabilitate the site.
THIRD PARTY ACCESS
21.7.1 - Existing Interests
Where Inuit Owned Lands are subject to,
a third party interest other than an interest in minerals, or
a third party interest in respect of specified substances,
in existence immediately before the vesting of the Inuit Owned Lands in the DIO, the third party interest shall continue in accordance with its terms and conditions, but the DIO shall assume the rights and obligations of the Crown in relation to any such interest. The DIO shall receive whatever consideration is paid or payable by the interest holder for the use or exploitation of these lands and specified substances in respect of any period following the date of vesting.
Where Inuit Owned Lands held in the form referred to in Sub-section 19.2.1(a) are subject to a third party interest in minerals other than specified substances, in existence immediately before the vesting of the Inuit Owned Lands in the DIO, that interest shall continue in accordance with its terms and conditions, including rights granted to the interest holder under the legislation in force at the date of vesting pursuant to which the interest is held, or from any successor legislation applicable to similar interests on Crown lands. Any provisions of such successor legislation that would have the effect of diminishing the rights of the DIO shall only apply to Inuit Owned Lands with the consent of the DIO. The DIO shall receive whatever consideration is paid or payable by the interest holder for the use or exploitation of the minerals other than specified substances in respect of any period following the date of vesting.
Every third party interest referred to in Section 21.7.2 shall continue to be administered by Government in accordance with legislation applicable to similar interests in Crown lands. Subject to any consent from the DIO required by Section 21.7.2, such legislation, including any successor legislation, shall be deemed to apply to the third party interest unless the holder of that interest and the DIO agree to the administration of that interest by the DIO. Upon notification by the interest holder and the DIO of such an agreement, the legislation shall no longer be deemed to apply to that interest and Government shall do whatever is required to transfer administration to the DIO.
Subject to Section 21.7.5, all powers, discretions and authorities in relation to third party interests referred to in Section 21.7.2, affecting the interest of the DIO as title holder, shall be exercised by Government in consultation with the DIO.
Where Government has the discretion to reduce or waive a royalty payable by a third party interest holder referred to in Section 21.7.2, such discretion shall not be exercised without the written consent of the DIO.
Government shall share with the DIO any information received from a third party interest holder referred to in Section 21.7.2 which that party is required to provide by legislation, where such information is required to permit the DIO:
to verify the consideration paid or payable to Government by the interest holder for the use or exploitation of the minerals other than specified substances; or
to participate in consultation with Government regarding third party interests as provided for in this Article.
A DIO receiving any information or documentation pursuant to Section 21.7.6 shall not disclose that information or documentation.
21.7.8 - Exercise of Rights Respecting Minerals
An operator may exercise rights to explore, develop, produce or transport minerals, in, on or under Inuit Owned Lands only in accordance with the Agreement.
A person having a right to prospect for minerals and whose activities are of a nature that would not require a land use permit under the Territorial Land Use Regulations (SOR/77-210, March 4, 1977) if they were conducted on Crown lands, shall have a right of access to Inuit Owned Lands, for the purpose of conducting those activities, with the consent of the DIO, and the DIO shall grant its consent if the activities are conducted in a manner consistent with the code for expedited prospecting access approved pursuant to Section 21.7.10.
For the purpose of Section 21.7.9, the DIO shall propose, for review with Government and relevant industry organizations, a code to provide expedited prospecting access to Inuit Owned Lands, which code shall come into effect upon approval by Government and the DIO. The code shall reflect the need to provide confidentiality for prospectors.
Except where the operator is exercising a right of access under Section 21.7.1 or21.7.9, no operator may exercise the rights referred to in Section 21.7.8 until it has obtained the consent of the DIO for the exercise of surface rights to Inuit Owned Lands. If the operator is unable to obtain the consent of the DIO, it may apply to the Tribunal for an entry order for its required purpose.
A person having a right to prospect for minerals shall, when applying to the Tribunal, make a separate application in respect of each parcel of Inuit Owned Lands, as indicated by the parcel designator, on which that person intends to exercise a right of access. The Tribunal shall take into account the need to provide confidentiality for prospectors.
Where a person who has no other right of access under this Agreement, requires access to Inuit Owned Lands to exercise a right under legislation to explore, develop, produce or transport minerals on lands other than Inuit Owned Lands, the provisions of Part 8 shall apply where it is established before the Tribunal that such access is reasonably required.
21.7.14 - Other Commercial Purposes
Where the DIO has consented to permit a third party to cross Inuit Owned Lands for commercial purposes but they are unable to agree on appropriate compensation, the matter shall be referred to the Tribunal for resolution.
Where a person requires access across Inuit Owned Lands for commercial purposes, and is not otherwise covered in this Article, that person shall be permitted access, including on a seasonal basis where appropriate, with the consent of the DIO or, if such consent is not forthcoming after an arbitration panel, pursuant to Article 38, within 30 days of being presented with a request,
has established that the person attempted for a period of not less than 60 days, to negotiate the access in good faith,
has determined that the access is essential to the commercial purpose and access by any other means is physically or financially impractical, and
has determined the route such access will follow so as to minimize the damage and interference with Inuit use,
and, based on the arbitration panel's findings, the Tribunal, in keeping with Part 8, has issued an entry order. The entry order shall include terms and conditions to minimize damage and interference with Inuit use.
SURFACE RIGHTS TRIBUNAL
21.8.1 - Establishment and Authority
A DIO has the right to require Government to establish and maintain an independent Surface Rights Tribunal ("Tribunal") which shall, within the Nunavut Settlement Area:
issue entry orders to operators to use and occupy lands to the extent necessary for their operations and subject to the payment of an entry fee to the owner or occupant in recognition of the forced nature of the taking, which fee shall be fixed by the appropriate legislation;
hold hearings to determine compensation payable to the surface rights holders;
periodically review the level of compensation payable under an entry order;
terminate an entry order, after a hearing, where lands are no longer being used for the purpose authorized; and
such other functions as may be provided for in the Agreement or legislation.
Where the DIO is the surface title holder, it shall not be required to cover any of the costs of establishing or operating the Tribunal. Government may establish and maintain the Tribunal notwithstanding the absence of a demand from a DIO, provided that the Tribunal fulfills the functions described in Section 21.8.1.
In determining the amount of compensation payable to the DIO in respect of InuitOwned Lands, the Tribunal shall consider,
the market value of the land,
loss of use to the DIO and Inuit,
the effect on wildlife harvesting by Inuit,
the adverse effect of the use or occupancy, upon other Inuit Owned Lands not so used or occupied,
damage which may be caused to the land used or occupied,
nuisance, inconvenience and noise to the DIO and Inuit,
the cultural attachment of Inuit to the land,
the peculiar and special value of the land to Inuit,
an amount to cover reasonable costs associated with DIO inspections as deemed appropriate by the Tribunal,
an amount to cover reasonable costs to the DIO associated with the application for an entry order and its processing, and
such other factors as may be provided for in legislation, but shall not consider the reversionary value or any entry fee payable.
Prior to exercising an entry order on Inuit Owned Lands, the applicant shall be required to pay the DIO the entry fee and 80% of its last compensation offer made to the DIO before it submitted the matter to the Tribunal.
The term DIO as used in Sections 21.8.3 and 21.8.4 shall include, where appropriate, any occupier of the land in question, and the Tribunal may apportion compensation between the DIO and the occupier.
With regard to Inuit Owned Lands, the period for review under Sub-section 21.8.1(c) shall be the lesser of five years or whatever period is provided in legislation. The DIO and the applicant may jointly waive the requirement for review.
The legislation shall provide that at least half of the members of any panel in any case dealing with Inuit Owned Lands shall be residents of the Nunavut Settlement Area.
The Tribunal shall conduct its business in Canada's official languages as required by legislation or policy, and upon request of any DIO, also in Inuktitut.
Any person or authorized representative of any person, who has power of expropriation under federal or territorial legislation (expropriating authority), may exercise that power of expropriation in accordance with laws of general application as qualified by the Agreement.
Nothing in this Part shall be construed to give the Territorial Government more extensive powers of expropriation than are given to the legislatures of the Provinces.
An expropriation other than an expropriation referred to in Section 21.9.14, shall be approved by a specific order of the Governor in Council.
Any expropriation legislation coming into force after the date of ratification of the Agreement shall, insofar as it applies to Inuit Owned Lands, provide for the following minimum procedures:0
notice of intention to expropriate served on the DIO;
an opportunity for the DIO to object to the expropriation on the basis that the expropriating authority has not complied with the expropriation legislation, and an opportunity to be heard on that objection; and
the determination of compensation by negotiation and mediation and, failing that, by reference to an arbitration panel or committee referred to in Section 21.9.8.
Where the expropriating authority acquires an estate in fee simple, those lands shall no longer be Inuit Owned Lands. Lands acquired as compensation for expropriation shall be Inuit Owned Lands.Where lands which have been expropriated are no longer required, the DIO shall have an option for six months following such a determination to re-acquire those lands as Inuit Owned Lands. If the parties are unable to agree on a price, the matter shall be referred to the arbitration panel or committee referred to in Section 21.9.8.
Where Inuit Owned Lands are expropriated, the expropriating authority shall, if reasonably possible, offer compensation in the form of alternate lands of equivalent utility and value in the Nunavut Settlement Area, or in combination of lands and money.
The DIO shall not be required to take compensation in the form of alternate lands.
Where the DIO and the expropriating authority continue to disagree on compensation, and mediation, if provided for, fails, the final determination of any compensation payable shall be by arbitration:
as set out in Article 38, other than for expropriation under the NationalEnergy Board Act; or
for expropriation under the National Energy Board Act, by an arbitration committee appointed under the Act that shall include at least one nominee of the DIO. The Minister in establishing the arbitration committee shall choose members who have special knowledge of, and experience related to, the criteria set out in Section 21.9.9.
In determining the amount of compensation payable to the DIO the arbitration panel or committee shall be guided by:
the market value of the land;
loss of use to the DIO and Inuit;
the effect on wildlife harvesting by Inuit;
the adverse effect of the taking, upon lands retained by the DIO;
damage which may be caused to the land taken;
nuisance, inconvenience and noise to the DIO and Inuit;
the cultural attachment of Inuit to the land;
the peculiar and special value of the land to Inuit;
an amount to cover reasonable costs associated with DIO inspections as deemed appropriate by the arbitration panel or committee;
an amount to cover reasonable costs to the DIO associated with the arbitration; and
any other factors as may be provided for in legislation.
Where an expropriating authority would have a power of expropriation of Inuit Owned Lands, or an interest therein under Section 21.9.1, that power may not be executed if:
12% of all Inuit Owned Lands vesting on the date of ratification of the Agreement or an interest therein has already been and remains expropriated; or
within a Land Use Region referred to in any of Schedules 19-2 to 19-7, 12% of Inuit Owned Lands in that region vesting on the date of ratification of the Agreement or an interest therein has already been and remains expropriated.
In calculating the areas expropriated in Section 21.9.10, no account shall be taken of those situations in which the DIO accepted alternative lands pursuant to Section 21.9.6.
Where Government has a right under Section 21.9.1, as qualified by this Article, to expropriate Inuit Owned Lands which it requires for its public transportation purposes, Government need not pay compensation for the lands taken, except for improvements, up to an amount not exceeding,
in respect of each Inuit Owned Lands Parcel, five percent (5%) of that Parcel, or
two percent (2%) of Inuit Owned Lands in the Land Use Region, referred to in any of Schedules 19-2 to 19-7, where the lands taken are located.
Where lands taken under this Section are no longer required for the purpose for which they were taken, they shall revert to the DIO at no cost.
In calculating the areas expropriated under Section 21.9.10, lands taken pursuant to Section 21.9.12 shall be taken into account.
An expropriation of Inuit Owned Lands within municipal boundaries for municipal purposes must be approved by a specific order of the Commissioner-in-Executive Council. Inuit Owned Lands expropriated for municipal purposes shall be taken into account in calculating areas under Sections 21.9.10 and 21.9.12.
APPLICATION AND SAVING
21.10.1 - Management
For greater certainty, any person exercising access rights referred to under this Article, except rights referred to under Part 3 and Sections 21.5.10 to 21.5.12, shall, where required, acquire the appropriate authorization as required under Article 12 and 13 prior to the exercise of those rights.
21.10.2 - Other
No person may acquire by prescription an estate or interest in Inuit Owned Lands.
Persons exercising rights under this Article have no right of action against the DIOfor alleged loss or damage arising from the exercise of those rights.
For greater certainty an Inuk may be the holder of a third party interest.
ACCESS ON CROWN LANDS
Where there is no adequate public route available, Government shall not, through the enactment or administration of laws of general application, or through the management or alienation of Crown lands, deprive Inuit of reasonable access to Inuit Owned Lands through Crown lands for the beneficial use and enjoyment of those Inuit Owned Lands. The manner of exercising that access shall be subject to laws of general application.
KINGNAIT PUBLIC ACCESS EASEMENT
Public right of access, from November 1 to March 31 in each year, for the purpose of transportation
A 30.5 metre (approximately 100 foot) strip of Inuit Owned Lands:
measured from ordinary high watermark of the following waterways within Kingnait Pass between the head of Kingnait Fiord and the head of Padle Fiord:
Padle Lake and Padle River
the unnamed river draining Island Lake to Kingnait Fiord, and
the rivers and lakes connecting the waterways listed in (i) to (vi) in a direct fashion; and
located within lines connecting Terrace Lake and Circle Lake as drawn on the property descriptions for Inuit Owned Lands Parcels BI-10/16L,M,26I.
MILNE INLET TOTE ROAD PUBLIC ACCESS EASEMENT
Public right of access for the purpose of transportation.
From Milne Inlet to the Mary River mine on Baffin Island on the route shown as Milne Inlet Tote Road on the property descriptions for Inuit Owned Lands Parcels:
EASEMENTS WITHIN MUNICIPALITIES
Municipality / Location
Purpose / User
1. Iqaluit: on beachfront on Inuit Owned Lands Parcel 800 - SK - 197 width: 10 metres
repair, maintain, replace buried sewage line / Town of Iqaluit
2. Iqaluit: on beachfront on Inuit Owned Lands Parcel 800 - SK - 197 width: 6 metres
repair, maintain, replace 2 surface drainage ditches / Town of Iqaluit
3. Iqaluit: Inuit Owned Lands Parcel 800 - SK - 201 width: 6 metres
repair, maintain, replace above- ground water distribution line / Town of Iqaluit
4. Iqaluit: Inuit Owned Lands Parcel 800 - SK - 201 width: 10 metres
repair, maintain, replace drainage ditch / Town of Iqaluit
5. Iqaluit: Inuit Owned Lands Parcel 800 - SK - 201 width: 10 metres
repair, maintain, replace electric transmission line / N.W.T. Power Corporation
6. Lake Harbour: Inuit Owned Lands Parcel 801 - SK - 028 width: 10 metres
repair, maintain, replace fuel, distribution (P.O.L.) line / Government or owner of the line
7. Pangnirtung: Inuit Owned Lands Parcel 804 - SK - 101
emergency access to the alternate community water supply being the river entering the north side of Pangnirtung Fiord across from the community / Municipal Corporation of Pangnirtung
8 Cambridge Bay: Inuit Owned Lands Parcel 500 - SK – 112/113
repair, maintain and upgrade and use of existing road from Cambridge Bay to Greiner Lake and Mt. Pelly areas / Public use, Territorial Government or Municipal Corporation of Cambridge Bay repairs, maintenance and upgrading.
GOVERNMENT ACTIVITIES NOT SUBJECT TO SECTION 21.5.5
On-site inspection activities.
Enforcement of laws.
Activities not related to construction.