WILDLIFE COMPENSATION
PART 1
DEFINITIONS AND INTERPRETATION
6.1.1
In this Article:
"claimant" means Inuit or an Inuk;
"compensation" means monetary compensation including cash payment in a lump sum or by instalments, and also includes non-monetary compensation such as the cost of temporary or permanent relocation, replacement or repair of property, and reimbursement in kind, subject to conservation limits, or any combination thereof;
"developer" means any person engaged in development activity;
"development" means any commercial or industrial undertaking, any municipal, territorial, provincial or federal government undertaking or extension thereof, on land or water in the Nunavut Settlement Area and in Zones I and II but does not include:
(a)
marine transportation; or
(b)
any wildlife measure or use approved in accordance with Article 5;
"wildlife" does not include flora.
6.1.2
This Article shall be interpreted in a manner consistent with Canada's sovereignty, sovereign rights and jurisdiction and with Canada's international obligations.
PART 2
APPLICATION
6.2.1
The wildlife compensation provisions in Articles 20 and 21 apply to damage which can be determined in advance. All other claims for wildlife compensation will be made through the provisions of this Article.
6.2.2
Subject to Section 6.2.3, this Article shall apply to marine transportation directly associated with any commercial or industrial or any municipal, territorial, provincial or federal government undertaking, or any extension thereof, on land or water in the Nunavut Settlement Area and in Zones I and II but does not apply to marine transportation not directly associated with such undertakings.
6.2.3
The Government of Canada shall specify a person, a fund, or both, capable of assuming the liability for marine transportation imposed under this Article by Section 6.2.2, and that specified person, or fund, or both, shall be considered to be a developer and that marine transportation shall be considered to be a development activity for the purpose of this Article.
6.2.4
In respect of commercial marine transportation through waters in the Nunavut Settlement Area and in Zones I and II, other than for marine transportation to which this Article applies pursuant to Section 6.2.2, Inuit will be entitled to wildlife compensation under laws of general application. Provision for such wildlife compensation under laws of general application in the Nunavut Settlement Area shall provide protection for Inuit on at least as favourable a basis as protection afforded to wildlife harvesters in other marine areas of Canada under laws of general application.
PART 3
GENERAL PRINCIPLE OF LIABILITY
6.3.1
A developer is liable absolutely, without proof of fault or negligence, for loss or damage suffered by a claimant as a result of its development activity within the Nunavut Settlement Area in respect of:
(a)
loss or damage to property or equipment used in wildlife harvesting or to wildlife reduced into possession;
(b)
present and future loss of income from wildlife harvesting; and
(c)
present and future loss of wildlife harvested for personal use by claimants.
6.3.2
A developer is not liable where that developer establishes that the loss or damage was wholly the result of an act of war, hostilities, civil war, insurrection, or natural phenomenon of an exceptional, inevitable and irresistible character.
6.3.3
Claimants shall make all reasonable attempts to mitigate against any loss or damage.
6.3.4
Legislation may provide for appropriate limits of liability of developers or the methods of setting such limits and shall also require proof of fiscal responsibility and may also provide for security deposits and any other matters not inconsistent with this Article.Recognizing Inuit concerns regarding collection of compensation, Government will give consideration to including enforcement mechanisms. Limits on liability will be set at levels sufficient to cover reasonably foreseeable damages in relation to various development activities.
PART 4
PROCEDURE FOR MAKING A CLAIM
6.4.1
A claimant, or a DIO or HTO on behalf of a claimant, shall make a claim for loss or damage in writing to the developer. If the claim is not settled within 30 days, the developer or the claimant, or a DIO or HTO on behalf of the claimant, may submit the claim to the Tribunal.
6.4.2
For the purposes of this Article only, a claimant may also bring before the Tribunal claims in respect of development activities in Zones I and II and the claim will be dealt with in accordance with this Article.
6.4.3
In hearing a claim, the Tribunal is not bound by strict rules of evidence and may take into account any material which it considers relevant. The Tribunal in hearing a claim shall give due weight to Inuit knowledge of wildlife and the environment and shall take into account the social, cultural and economic importance of wildlife to Inuit. The Tribunal may appoint experts and may call witnesses.
6.4.4
As a general principle, compensation shall not be a guaranteed annual income in perpetuity. A compensation award may be reviewed by the Tribunal at the request of either party to the hearing.
6.4.5
A claim must be made within three years of the date on which the loss or damage occurred, or within three years of the date on which the loss or damage became known to the claimant.
6.4.6
The Tribunal shall hear the case and determine liability and compensation. TheTribunal shall make a decision within 30 days of completing the hearing of a claim.
6.4.7
Recognizing that it is the intention that loss or damage suffered by a claimant should be minimized by expeditious processing of claims and payment of compensation, the Tribunal may:
(a)
deal with a claim in respect of loss or damage to property or equipment used in wildlife harvesting or to wildlife reduced into possession before proceeding to hear evidence on any other loss or damage;
(b)
require that interest be paid on monetary compensation at a rate set by theTribunal; and
(c)
provide for additional compensation to cover any additional loss or damage, and costs, including costs of collection, that may result from any delay in fulfilling the terms of a compensation decision.
6.4.8
At the request of a claimant, the Tribunal shall register the compensation decision in the superior court having jurisdiction over the Nunavut Settlement Area and the claimant may use that court to enforce the decision. The Tribunal may provide assistance in the enforcement of its decision.
6.4.9
When the Tribunal decides where to hold a hearing, the convenience of the claimant shall be a major factor.
6.4.10
When the Tribunal determines that loss or damage was caused by more than one developer, those developers shall be severally liable. The Tribunal shall apportion liability in accordance with generally accepted principles of statute and common law.
6.4.11
The expenses incurred by the Tribunal in determining claims under this Article shall not be borne by the claimant nor any DIO or HTO acting on behalf of a claimant. The costs incurred by an HTO acting on behalf of a claimant shall not be the responsibility of the NWMB.
PART 5
OTHER MATTERS
6.5.1
Where an IIBA includes wildlife compensation provisions, that agreement shall preclude the need to address wildlife compensation under Articles 20 and 21.
6.5.2
In negotiating an IIBA, or an agreement referred to in Section 6.6.2, the parties to such negotiations are not limited to the definition of loss or damage in this Article. Subject to this Section, for all other purposes of the Agreement, wildlife compensation shall be interpreted to mean compensation for that loss or damage referred to in Section 6.3.1.
PART 6
SAVINGS
6.6.1
The provisions of this Article are without prejudice to any other rights or remedies that the claimant may have under laws of general application with respect to loss or damage arising out of development activity. However, if the claim is referred to the Tribunal under Section 6.4.1, the decision of the Tribunal shall be conclusive in relation to all losses or damages described in Sub-sections 6.3.1(a), (b) and (c), subject only to review by the Federal Court of Appeal under Section 28 of the Federal Court Act, R.S.C. 1985, c.F-7. If a claim against a developer is dismissed, a claimant is not precluded from claiming the same loss or damage against a different developer.
6.6.2
Nothing in this or any other Article relating to wildlife compensation prevents Inuit and a developer from entering into a wildlife compensation agreement that would replace all other obligations in relation to wildlife compensation under this Agreement.
6.6.3
Nothing in this Article shall be construed as limiting or restricting any right of recourse that a developer who is liable under Part 3 may have against any person other than the claimant.
