Nunavut Waters and Nunavut Surface Rights Tribunal Act

This Act may be cited as the Nunavut Waters and Nunavut Surface Rights Tribunal Act.

The definitions in this subsection apply in this Act.

Agreement means the land claims agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in right of Canada that was ratified, given effect and declared valid by the Nunavut Land Claims Agreement Act, which came into force on July 9, 1993, and includes any amendments to that agreement made under the agreement. (Accord)

carving stone means serpentinite, argillite or soapstone that is suitable for carving. (pierre à sculpter)

designated Inuit organization means

except in the case of the jointly owned lands referred to in section 40.2.8 of the Agreement,

Tunngavik, or

in respect of a provision of this Act referred to in Schedule 1, any organization designated in the public record maintained by Tunngavik under the Agreement as being responsible for any function under the corresponding provision or provisions of the Agreement referred to in that Schedule; or

in the case of the jointly owned lands referred to in section 40.2.8 of the Agreement, Makivik acting jointly with the organization determined under paragraph (a). (organisation inuit désignée)

Inuit means those persons enrolled from time to time under the terms of Article 35 of the Agreement and includes, in the case of the jointly owned lands referred to in section 40.2.8 of the Agreement, the Inuit of northern Quebec. (Inuit)

Inuit of northern Quebec means the Inuit of northern Quebec within the meaning of the James Bay and Northern Quebec Agreement that was approved, given effect and declared valid by the James Bay and Northern Quebec Native Claims Settlement Act, S.C. 1976-77, c. 32. (Inuit du Nord québécois)

Inuit-owned land means any land that has the status of Inuit Owned Land under the Agreement, and includes the jointly owned lands referred to in section 40.2.8 of the Agreement. (terre inuit)

Inuktitut means the Inuktitut language and includes Inuinaqtuun. (inuktitut)

Makivik means the corporation established by An Act respecting the Makivik Corporation, R.S.Q., c. S-18.1, and representing the Inuit of northern Quebec. (Makivik)

mineral right means a right to explore for, develop, produce or transport minerals, other than specified substances. (droit minier)

minerals means precious and base metals and other non-living, naturally occurring substances, whether solid, liquid or gaseous, and includes coal, oil and gas, but does not include water. (minéraux)

Minister means the Minister of Northern Affairs. (ministre)

specified substances means construction stone, sand, gravel, limestone, marble, gypsum, shale, clay, volcanic ash, earth, soil, diatomaceous earth, ochre, marl, peat and carving stone. (matières spécifiées)

Tunngavik means Nunavut Tunngavik Incorporated, a corporation without share capital incorporated under Part II of the Canada Corporations Act, R.S.C. 1970, c. C-32, and any successor to that corporation. (Tunngavik)

In this Act, Nunavut Settlement Area has the meaning assigned to that expression by section 3.1.1 of the Agreement.

Where there is any inconsistency or conflict between the Agreement and this Act, the Agreement prevails to the extent of the inconsistency or conflict.

Where there is any inconsistency or conflict between this Act and any other Act of Parliament, except the Nunavut Land Claims Agreement Act, this Act prevails to the extent of the inconsistency or conflict.

The definitions in this section apply in this Part.

appurtenant undertaking means an undertaking in relation to which a use of waters or a deposit of waste is permitted by a licence. (entreprise principale)

Board means the Nunavut Water Board established by section 14. (Office)

domestic purpose means the use of waters for the following purposes:

household requirements, including sanitation and fire prevention;

the watering of domestic animals; or

the irrigation of a garden that adjoins a dwelling-house and is not ordinarily used in the growth of produce for market. (domestique)

instream use means a use of waters by a person, other than for a domestic purpose or as described in paragraph (a), (b) or (c) of the definition use, to earn income or for subsistence purposes. (ordinaire)

licence means, unless the context otherwise requires, a type A or type B licence, in accordance with the criteria prescribed by the regulations, issued for the use of waters or the deposit of waste, or both, in Nunavut under section 42. (permis)

licensee means a person to whom a licence is issued or assigned. (titulaire)

marine area means any waters, including those that are ice-covered, of the Nunavut Settlement Area, other than inland waters, and the seabed and subsoil below those waters. (zones marines)

national park means a park within the meaning of the Canada National Parks Act, or lands set aside as a reserve for a park under that Act. (parc national)

Nunavut Impact Review Board means the Nunavut Impact Review Board referred to in section 18 of the Nunavut Planning and Project Assessment Act. (Commission d’examen des projets de développement)

Nunavut Planning Commission means the Nunavut Planning Commission referred to in section 10 of the Nunavut Planning and Project Assessment Act. (Commission d’aménagement)

penalty means an administrative monetary penalty imposed for a violation. (pénalité)

use, in relation to waters, means a direct or indirect use of any kind, including, but not limited to, However, it does not include navigation or any other use connected with shipping activities that are governed by the Canada Shipping Act, 2001. (utilisation)

any use of water power and geothermal resources;

any diversion or obstruction of waters;

any alteration of the flow of waters; and

any alteration of the bed or banks of a river, stream, lake or other body of water, whether or not the body of water is seasonal.

waste means any substance that, by itself or in combination with other substances found in water, would have the effect of altering the quality of any water to which the substance is added to an extent that is detrimental to its use by people or by any animal, fish or plant, or any water that would have that effect because of the quantity or concentration of the substances contained in it or because it has been treated or changed, by heat or other means, and includes

any substance or water that, for the purposes of the Canada Water Act, is deemed to be waste;

any substance or class of substances specified by the regulations;

water containing any substance or class of substances in a quantity or concentration that is equal to or greater than that prescribed by the regulations; and

water that has been subjected to a treatment or change described by the regulations. (déchet)

waters means inland waters, whether in a liquid or solid state, on or below the surface of land. (eaux)

Nothing in this Part, the regulations or a licence authorizes a person to contravene any other Act of Parliament or a regulation or order made under any other Act of Parliament.

Nothing in this Part, the regulations or a licence constitutes a defence to a claim for loss or damage sustained by any person by reason of the construction or operation of any work forming part of an appurtenant undertaking.

This Part is binding on Her Majesty in right of Canada or a province, except that Her Majesty in right of Canada is not required to pay any fee prescribed by the regulations.

Subject to any rights granted by or under any other Act of Parliament in respect of waters in Nunavut, the property in and the right to the use of all waters in Nunavut are vested in Her Majesty in right of Canada.

Despite subsection (1), the designated Inuit organization has, in respect of waters in Nunavut, the rights that are provided in the Agreement, including the exclusive right to the use of water on, in, or flowing through Inuit-owned land and the right to have water flow through that land substantially unaffected in quality, quantity and flow.

The Minister may, in writing, delegate to the territorial minister responsible for water resources any of the Minister’s functions under sections 14, 16, 17, 19 and 21, subsection 55(5), section 56, subsection 77(1) and section 84, either generally or as otherwise provided in the instrument of delegation, except that the delegation cannot abrogate or derogate from any rights of Inuit under the Agreement.

The Minister and the territorial minister responsible for water resources shall, with the assistance of the Board, use their best efforts to negotiate an agreement, subject to any agreement entered into under section 5 or 11 of the Canada Water Act, with a provincial government providing for the management of any waters situated partially in Nunavut and partially in a province, or flowing between Nunavut and a province. The Minister shall not enter into an agreement without the approval of the Governor in Council.

Subject to subsection (2), no person shall use, or permit the use of, waters in Nunavut except in accordance with the conditions of a licence.

Subsection (1) does not apply in respect of

any unlicensed use of waters that is authorized by the regulations;

the use of waters

for a domestic purpose, or

for the purpose of extinguishing a fire or, on an emergency basis, controlling or preventing a flood; or

the use of waters in a national park.

Where a person diverts waters for a purpose referred to in subparagraph (2)(b)(ii), the person shall, when the need for the diversion has ceased, discontinue the diversion and, in so far as possible, restore the waters to their original channel.

Subject to subsection (2) and except in accordance with the conditions of a licence, no person shall deposit or permit the deposit of waste

in waters in Nunavut; or

in any other place in Nunavut under conditions in which the waste, or any other waste that results from the deposit of that waste, may enter waters in Nunavut.

Subsection (1) does not apply in respect of

any unlicensed deposit of waste that is authorized by the regulations; or

the deposit of waste in a national park.

Where waste is deposited in contravention of this section, every person who owns or has the charge, management or control of the waste, or who caused or contributed to the deposit, shall, subject to the regulations, without delay report the deposit to an inspector.

Except as otherwise provided by a compensation agreement referred to in this Part, a person, including the designated Inuit organization, who is adversely affected by a licensed use of waters or deposit of waste, or by an unlicensed use of waters or deposit of waste authorized by the regulations, is entitled to be compensated in respect of that adverse effect by the licensee or the person so authorized and to recover the compensation in any court of competent jurisdiction.

A person, including the designated Inuit organization, is entitled to recover compensation under subsection (1) only to the extent that the person is not paid compensation under any other provision of this Part in respect of the adverse effect.

There is hereby established the Nunavut Water Board, the members of which are to be appointed by the Minister.

Subject to sections 16 and 17, the Board consists of nine members, including the Chairperson.

The following rules apply to the appointment of members, other than the Chairperson:

one half of the members shall be appointed on the nomination of the designated Inuit organization; and

one quarter of the members shall be appointed on the nomination of

the territorial minister responsible for renewable resources, and

the territorial minister or ministers designated, by an instrument of the Executive Council of Nunavut, for the purposes of this paragraph.

The Chairperson shall be appointed after consultation with the other members.

A member of the Board shall be appointed to hold office for a term of three years.

If the term of a member expires before the member has made a decision in a matter for which a public hearing is held, the member may, with the authorization of the Chairperson, continue to act as a member only in relation to that matter until the hearing is concluded and a decision is made. The office of the member is deemed to be vacant as soon as the term expires for the purpose of the appointment of a replacement.

Additional members may be appointed to the Board for the performance of a specified purpose, or for a term of less than three years, in the manner and the proportions provided by subsection 14(3).

During any period preceding the ratification by the parties of an agreement to settle the offshore land claims of the Inuit of northern Quebec, the Minister shall appoint, on the nomination of Makivik, a number of substitute members of the Board equal to one-half the number appointed on the nomination of the designated Inuit organization.

In respect of licensing decisions of the Board that apply to any area of equal use and occupancy described in Schedule 40-1 to the Agreement, the substitute members shall act in the place of such members appointed on the nomination of the designated Inuit organization as are identified by the Minister, after consultation with that organization, at the time of the appointment of the substitute members.

Subject to subsection 15(2), the term of a substitute member is three years, except that the term of that member expires on the ratification referred to in subsection (1).

Substitute members shall not be considered to be members, except in respect of decisions referred to in subsection (2).

Before taking up their duties, members of the Board shall take and subscribe the oath of office set out in Schedule 2 before a person authorized by law to administer oaths.

Any member of the Board may be removed for cause, but before a member who was nominated by the designated Inuit organization, Makivik or the territorial ministers is removed, the Minister shall consult the designated Inuit organization, Makivik or the territorial ministers, as the case may be.

A member is eligible to be reappointed to the Board in the same or another capacity.

Where the office of a member becomes vacant, the Minister shall, without delay, appoint a new member to that office, and if the vacancy occurs during the term of a member, a replacement shall be appointed only for the remainder of that term.

The Chairperson is the chief executive officer of the Board and has such powers, duties and functions as are prescribed by the rules or by-laws of the Board.

No member of the Board may participate in a decision on a matter in which that member has a material conflict of interest.

A member is not placed in a material conflict of interest merely because the member has the status under the Agreement of an Inuk or has an interest in land in Nunavut.

The members of the Board shall receive fair remuneration, as determined by the Minister, for the performance of their duties and shall be paid such travel and living expenses incurred while absent from their ordinary place of residence in the course of performing their duties as are consistent with Treasury Board directives for public servants.

A member is deemed to be an employee for the purposes of the Government Employees Compensation Act and to be employed in the public service of Canada for the purposes of any regulations made under section 9 of the Aeronautics Act.

The Board shall conduct its business in both of the official languages of Canada in accordance with the Official Languages Act and any directives of the Minister and, on request by a member, in Inuktitut.

The Board shall conduct public hearings in both of the official languages of Canada in accordance with the Official Languages Act and any directives of the Minister and, on request by a member, an applicant or an intervenor, in Inuktitut.

Nothing in subsection (1) or (2) shall be construed to prevent the use of translation or interpretation services where a member is otherwise unable to conduct business in Inuktitut or in either official language.

The Board has, in any proceedings before it, the duty to ensure that any person giving evidence before it may be heard in Inuktitut or in either official language, and that in being so heard the person will not be placed at a disadvantage by not being heard in another of those languages.

The head office of the Board shall be at Gjoa Haven or at such other place in Nunavut as the Governor in Council may designate.

The Board shall ordinarily hold its meetings in Nunavut.

Subject to the rules and by-laws of the Board, any member may participate in a business meeting by means of telephone or other communications facilities that are likely to enable all persons participating in the meeting to hear each other, and a member so participating is deemed for all purposes of this Part to be present at that meeting.

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

The Board may, for the purposes of conducting its business,

acquire property in its own name and dispose of the property; and

enter into contracts in its own name.

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.

The Board may establish panels of the Board and delegate any of its powers, duties and functions to them.

Every panel shall consist of equal numbers of members appointed to the Board on the nomination of the designated Inuit organization or Makivik, as the case may be, and other members.

The Board may employ such officers and employees and engage the services of such agents, advisers and experts as are necessary for the proper conduct of its business, and may fix the terms and conditions of their employment or engagement and pay their remuneration.

The members and employees of the Board shall be indemnified by the Board against all damages awarded against them, any settlement paid by them with the approval of the Minister and all expenses reasonably incurred by them, in respect of any claim arising out of their functions as members or employees, if those functions were carried out honestly and in good faith with a view to the best interests of the Board.

The Board shall annually submit a budget for the following fiscal year to the Minister for consideration.

The Board shall maintain books of account and records in relation to them in accordance with accounting principles recommended by the Chartered Professional Accountants of Canada or its successor.

The Board shall, within such time after the end of each fiscal year as the Minister specifies, prepare consolidated financial statements in respect of that fiscal year in accordance with the accounting principles referred to in subsection (2), and shall include in the consolidated financial statements any information or statements that are required in support of them.

The accounts, financial statements and financial transactions of the Board shall be audited annually by the auditor of the Board and, where the Minister requests, the Auditor General of Canada. The auditor and, where applicable, the Auditor General of Canada shall make a report of the audit to the Board and the Minister.

The Board may make rules and by-laws respecting the conduct and management of its business.

The Board shall apply the following principles when making rules or by-laws for the conduct of public hearings:

the admission of evidence that would not normally be admissible under strict rules of evidence shall be allowed, and appropriate weight shall be given to such evidence;

due regard and weight shall be given to Inuit culture, customs and knowledge; and

procedural fairness shall be observed.

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

The Board shall give notice at least sixty days in advance of making any rule or by-law about practice and procedure for applications and hearings before it by

publishing the proposed rule or by-law in a newspaper or other periodical that, in the opinion of the Board, has a large circulation in Nunavut; and

sending a copy of the proposed rule or by-law to the council of each municipality in Nunavut.

The notice referred to in subsection (1) shall include an invitation to interested persons to make representations in writing to the Board about the proposed rule or by-law within sixty days after publication of the notice.

The Board may not make the rule or by-law until after it has responded to any representations made within the time limit referred to in subsection (2).

Once a notice is published under subsection (1), no further notice is required to be published about any amendment to the proposed rule or by-law that results from representations made by interested persons.

As soon as possible after the rule or by-law has been made, the Board shall

publish it in a newspaper or other periodical that, in the opinion of the Board, has a large circulation in Nunavut; and

publish a notice in the Canada Gazette that the rule or by-law has been made, indicating the newspaper or periodical in which it has been published.

The objects of the Board are to provide for the conservation and utilization of waters in Nunavut, except in a national park, in a manner that will provide the optimum benefit from those waters for the residents of Nunavut in particular and Canadians in general.

The Board shall contribute fully to the development of land use plans so far as they concern waters in Nunavut, by providing recommendations to the Nunavut Planning Commission.

In order to avoid unnecessary duplication and to ensure that projects are dealt with in a timely manner, the Board shall cooperate and coordinate its consideration of applications with the Nunavut Planning Commission’s review of projects under sections 76 to 85 of the Nunavut Planning and Project Assessment Act for conformity with any applicable land use plans approved under subsection 55(1) of that Act.

In order to avoid unnecessary duplication and to ensure that projects are dealt with in a timely manner, the Board shall cooperate and coordinate its consideration of applications with the Nunavut Impact Review Board or any federal environmental assessment panel or joint panel established under subsection 115(1) or paragraph 160(1)(a) or (b) of the Nunavut Planning and Project Assessment Act in relation to the screening of projects by that Board and the review of projects by that Board or panel.

The Board may, in lieu of conducting a separate public hearing in respect of a licence in connection with a project for which a public hearing is to be held by the Nunavut Impact Review Board or the panel referred to in subsection (1), as the case may be, conduct, in relation to the project, a joint hearing with that Board or panel or participate in the hearing of that Board or panel.

The Board may not issue, renew or amend a licence to use waters or deposit waste in relation to a use or deposit, or appurtenant undertaking, that is a project within the meaning of subsection 2(1) of the Nunavut Planning and Project Assessment Act if

the assessment of the project under Part 3 of that Act has not been completed;

the assessment of the project has been terminated under subsection 141(2), 142(2), 143(4) or (6) or 144(3) of that Act;

the Nunavut Planning Commission has determined, under section 77 of that Act, that the project is not in conformity with any applicable land use plan, and no minor variance or exemption has been granted in respect of the project under paragraph 81(2)(a) or 82(2)(a) of that Act, as the case may be;

the responsible Minister, within the meaning of subsection 73(1) of that Act, has decided that the project could be modified and an amended project proposal submitted to the Nunavut Planning Commission, or that it is not to proceed; or

the responsible authority, within the meaning of section 163 of that Act, has determined, under section 165 of that Act, that the project is not in conformity with the requirements set out by or under any law for which it has responsibility.

Despite paragraph (1)(a), the Board may issue, renew or amend a licence in relation to exploration or developmental activities referred to in subsection 154(1) of the Nunavut Planning and Project Assessment Act or exploration or development activities referred to in paragraph 155(1)(a) or (b) of that Act.

Licences issued under subsection (2) must not be renewed or amended if the responsible Minister, as defined in subsection 73(1) of the Nunavut Planning and Project Assessment Act, has come to a decision under Part 3 of that Act that the project to which the activities in question relate either is not to proceed or could be modified and an amended project proposal submitted to the Commission or the responsible authority within the meaning of section 163 of that Act, as the case may be.

[Repealed, 2013, c. 14, s. 8]

Where the use of waters or the deposit of waste that is the subject of an application to the Board would have a significant impact on a use of waters or a deposit of waste in a national park or any place outside Nunavut, the Board may collaborate with any body exercising powers of water management for that park or place.

The Board may, either jointly with the Nunavut Planning Commission, the Nunavut Impact Review Board and the Nunavut Wildlife Management Board, as established by the Agreement, acting as the Nunavut Marine Council referred to in section 15.4.1 of the Agreement, or on its own, advise and make recommendations respecting any marine area to any department or agency of the Government of Canada or the Government of Nunavut, and those governments shall consider that advice and those recommendations when making any decision that may affect that marine area.

Subject to this Act and on application, the Board may issue the appropriate licence.

The Board may not issue a licence in respect of a use of waters described in paragraph 11(2)(b) or (c) or a deposit of waste described in paragraph 12(2)(b).

The Board may not refuse to issue a licence merely because the regulations authorize the use of waters or the deposit of waste without a licence.

Subject to this Act, the Board may

on application by the licensee, renew a licence, with or without changes to the conditions of the licence;

amend, for a specified term or otherwise, any condition of a licence

on application by the licensee,

to deal with a water shortage, or

where the Board considers the amendment to be in the public interest; and

cancel a licence

on application by the licensee,

where the licensee, for three successive years, fails to exercise the licensee’s rights under the licence, or

where the Board considers the cancellation to be in the public interest.

Sections 57 to 76 apply in relation to the renewal or amendment of a licence.

The Board shall give notice of its intention to consider, on its own initiative, the amendment of a condition of a licence under subparagraph 43(1)(b)(ii) or (iii) or the cancellation of a licence under subparagraph 43(1)(c)(ii) or (iii), by publishing a notice on its Internet site, in the public registry, in the Canada Gazette or in a newspaper or other periodical that, in its opinion, has a large circulation in Nunavut.

Subsection (1) does not apply if the Board, with the consent of the Minister, declares the amendment or the cancellation to be required on an emergency basis.

A sale or other disposition by a licensee of any right, title or interest in an appurtenant undertaking constitutes, subject to the authorization of the Board, an assignment of the licence to the person to whom the sale or other disposition is made.

The Board shall, on application, authorize the assignment of a licence if it is satisfied that the assignment and the operation of the appurtenant undertaking would not be likely to result in a contravention of any condition of the licence or any provision of this Part or the regulations.

Except as provided in this section, a licence is not assignable.

The term of a licence or any renewal shall not exceed

25 years, in the case of a type A licence respecting a class of appurtenant undertakings that is prescribed by the regulations or in the case of a type B licence; or

the anticipated duration of the appurtenant undertaking, in the case of a type A licence other than one described in paragraph (a).

The expiry or cancellation of a licence does not relieve the holder from any obligations imposed by the licence.

Subject to section 62, where two persons hold licences or other authorizations to use waters issued by any authority responsible for the management of waters in the Northwest Territories or in Nunavut, the person who first applied is entitled to the use of the waters in accordance with that person’s licence or authorization in precedence to the other person.

An application in relation to a licence shall contain the information and be in the form required by the rules or by-laws of the Board, and be accompanied by the fees required by the regulations.

An application, except in relation to a cancellation, shall be accompanied by the information and studies concerning the use of waters or the deposit of waste that are required for the Board to evaluate the qualitative and quantitative effects of the use or the deposit on waters.

On the filing of an application, the Board may provide guidelines to the applicant respecting the information to be provided by the applicant in respect of any matter that the Board considers relevant, including the following: