Frequently Asked Questions - Northwest Territories Surface Rights Board Act

Q1. What is the Northwest Territories Surface Rights Board Act?

A1. The Act will establish a Board to resolve disputes over terms and conditions and compensation, between holders of surface or subsurface rights and the owner or occupant of the surface when an agreement cannot be reached by the parties through negotiation or mediation.

Q2. Why are we introducing this bill now?

A2. The creation of the Board is the last outstanding legislative obligation contained in the Gwich’in Comprehensive Land Claims Agreement and the Sahtu Dene and Métis Comprehensive Land Claims Agreement and will complete the resource management regime that was originally envisaged for the NWT. The arbitration systems with respect to access established by the Claims were intended as an interim measure until a Surface Rights Board is established. The Surface Rights Board will provide a single mechanism to resolve disputes related to access for the entire NWT.

Q3. How was the bill developed?

A3. Work on surface rights legislation began in 2010 and included unprecedented consultation with Aboriginal organizations and governments with settled claims, those negotiating claims, and transboundary groups with interests in the NWT. Three successive drafts of the legislative proposal were provided to these organizations and governments between the fall of 2010 and the spring of 2012. Comments on each draft were solicited and information and consultation sessions were held in the NWT after each draft was distributed. Many accommodation measures arising from concerns and suggestions have been incorporated into the bill. All comments and concerns were analyzed and responses were provided.

As well, departmental officials have met with and sought input from industry throughout the development of this bill, most notably through its membership associations such as the NWT/Nunavut Chamber of Mines, the Canadian Association of Petroleum Producers, the Canadian Energy Pipeline Association, the Mining Association of Canada and the Prospectors and Developers Association of Canada. Representatives of the Government of the Northwest Territories were also engaged and consulted throughout the bill’s development. An information session for other Boards in the NWT was conducted and information will be provided to ENGOs to inform them of the bill’s purpose, content, and how the Board will operate.

Q4. What is in the bill?

A4. First, it would establish a Board process that is fair and equitable. Key characteristics and provisions of the bill are:

  • It is consistent with the Land Claims Agreements in the NWT;
  • It provides jurisdiction to the Board to make orders setting out terms and conditions for access and the appropriate compensation to be paid with respect to that access, when an agreement could not be reached by the parties themselves through negotiations;
  • It provides for the Minister to appoint no fewer than five and no more than nine members, and five alternate members, to the Board;
  • It provides for the Board to make rules and by-laws;
  • It provides for the Board to set compensation for unforeseen damages resulting from access;
  • It provides for the Board to periodically review access orders;
  • It provides for the Board to terminate orders when access is no longer being used for the purpose for which the order was made; and
  • It requires that the Minister review the Act with representatives of any Aboriginal group that has entered into an agreement in relation to the NWT to determine whether the Act should be amended to implement any provision of that Agreement.

Q5. What is the proposed process for resolving access disputes?

A5. The Board may receive applications from one or both parties to a dispute when a negotiated access agreement cannot be reached. A panel of the Board will then conduct a hearing and determine compensation and terms and conditions related to access. The Board then makes an order containing the terms and conditions by which access can be exercised and any compensation payable for that access.

When making its decision the Board is required to take into account any factors and material it considers relevant, including: market value, loss of use, effects on wildlife, damage, nuisance or inconvenience, cultural attachment, and peculiar or special value. Additionally, when determining terms and conditions, the Board may include terms or conditions appropriate to minimize damage to, or disruption of, peaceful enjoyment of the land.

Q6. How will this benefit landowners/occupants? Surface/Subsurface rights holders? Northwest Territories residents?

A6. It will help provide timely access to surface and subsurface resources and increase the predictability and consistency of the regulatory regime. This will provide increased confidence and certainty on the part of investors and developers, which will foster increased economic development, including job creation and long-term prosperity for residents.

Q7. What are the impacts of the creation of the Northwest Territories Surface Rights Board Act on regional arbitration panels in the Northwest Territories?

A7. The regional arbitration panels will maintain their current responsibilities as per their respective Land Claims Agreements. The creation of the Northwest Territories Surface Rights Board Act will remove the requirement of the arbitration panels to deal with surface and subsurface access disputes. The access dispute resolution processes currently in place was intended only as an interim process until a Surface Rights Board could be established.