Surface Rights in Nunavut

Nunavut Land Claims Agreement On July 9, 1993 the Nunavut Land Claims Agreement (NLCA) was signed by the Inuit (represented by the Tungavik Federation of Nunavut, now Nunavut Tunngavik Inc. or NTI), the Government of Canada and the Government of the Northwest Territories. The NLCA was the basis for the creation of the new territory of Nunavut, which was officially established on April 1, 1999. Nunavut covers a geographical area of 2.1 million sq. km. (20% of the land mass of Canada) with a population of more than 28,000 people living in widely dispersed communities. It is estimated that by 2020 the population of Nunavut will be 44,000.

Nunavut Natural Resources Nunavut has significant natural resources. It is estimated that 10% of Canada’s total oil reserves, 20% of its natural gas reserves and significant mineral deposits including copper, diamonds, gold, iron ore, lead, platinum, uranium and zinc are found within its borders.

Nunavut Natural Resources Land and Natural Resource Ownership in Nunavut In 1993 the NLCA divided the ownership of natural resources in Nunavut between NTI and the Government of Canada: Transferred from the Government of Canada to NTI legal fee simple title to 356,000 sq. km. of surface land (19% of Nunavut) in the form of 94 parcels to which Inuit hold surface title only and the Government of Canada retains the mineral rights. Transferred from the Government of Canada to NTI legal fee simple title to 38,000 sq. km. of surface and sub-surface land (2% of Nunavut) in the form of 144 parcels to which Inuit hold fee simple title to surface and mineral rights. Provided a 5% share of Crown royalties on resource development within Nunavut. Created an obligation on the part of developers to conclude Impact Benefit Agreements (IIBA) with Inuit for major projects. Gave hunting rights to Inuit throughout Nunavut. Provided a $13 million training fund for Inuit. Provided a cash settlement of $1.14 billion to Inuit. In exchange, the Inuit surrendered their aboriginal title to Canada.

Land and Natural Resource Ownership in Nunavut Inuit Owned Lands A complete inventory of land, islands and marine territory subject to the NLCA is listed in the Agreement itself. Inuit Owned Lands (IOLs) can be seen on the map Inuit Owned Lands – Nunavut. Almost all of Nunavut’s advanced mineral exploration projects are located entirely or partly on IOLs.

Land and Natural Resource Ownership in Nunavut Inuit Owned Lands Nunavut

Land and Natural Resource Ownership in Nunavut Inuit Owned Lands The legal title to IOLs is shared between NTI and the Regional Inuit Associations (RIAs). (NLCA Article 19): Surface land in Nunavut is vested in the 3 RIAs – Kitikmeot, Kivalliq and Qikitani. The RIAs administer access to these lands through the issuance of Land Use Licences and Surface Leases as well as other forms of authorization. Sub-surface title to IOLs is vested in NTI.   IOLs are held in trust by NTI and the RIAs on behalf of and for the benefit of all Inuit.

Land and Natural Resource Ownership in Nunavut Sale of IOL Inuit cannot sell or trade IOLs, except to Government. This rule exists so that there will always be IOLs for future generations. However, Inuit can lease IOLs or otherwise allow use of their lands by non-Inuit interests.

Land and Natural Resource Ownership in Nunavut Lands Owned by the Government of Canada   For the approximately 80% of land in Nunavut in which both the surface and sub-surface (minerals) are retained by the Government of Canada, access remains as it was prior to the NLCA. Both the mineral rights and land use activities are administered by the Federal Government, with the acquisition of mineral rights by developers carried out pursuant to the terms of the Canada Mining Regulations.

Access to Land & Natural Resources in Nunavut Access to the Surface of Inuit Owned Lands For surface IOLs in which sub-surface mineral rights are held by the Government of Canada, mineral rights continue to be administered by the Federal Government. However, permission to enter onto the surface of these IOLs for the purpose of carrying out prospecting activities must be obtained from the appropriate RIA before any exploration may be carried out.

Access to Land and Natural Resources in Nunavut Access to the Sub-Surface of Inuit Owned Lands   For sub-surface IOLs there are 2 possible approaches to access to the mineral resources: If there were no pre-existing mineral rights held by third parties at the time the NLCA came into effect, mineral rights on ILOs are administered by NTI, which oversee their development. If there were pre-existing mineral rights held by third parties at the time the NLCA came into effect, these pre- existing mineral rights are “grandfathered” and continue to be administered by the Government of Canada until they terminate or the holder of those rights transfer their interest to the NTI regime.

Access to Land and Natural Resources in Nunavut Inuit Impact and Benefits Agreements   Article 26 of the NLCA provides that no major development project may commence on any parcel of IOL until an Inuit Impact and Benefits Agreement (IIBA) has been finalized. Negotiation of the IIBA is the responsibility of the local RIA, and may address a variety of matters that the parties consider to be relevant to the needs of the project and Inuit. (For a complete list see NLCA s. 26.3.1).

Access to Land and Natural Resources in Nunavut Land and Resource Management Institutions in Nunavut “Land and Resource Management Institutions” in Nunavut are established by Article 10 of the NLCA. It provides for the establishment of Institutions of Public Government (IPGs) to manage land and resources in the Territory. There are 5 IPGs including the Nunavut Surface Rights Tribunal (NSRT): “10.1.1 The Government of Canada undertakes that the following institutions will be established as institutions of public government in accordance with the Agreement, according to the following timetable: (a) the Surface Rights Tribunal (Tribunal), six months after the date of ratification of the Agreement, unless established at an earlier date;”

Access to Land and Natural Resources in Nunavut Nunavut Surface Rights Tribunal   The NSRT is an IPG, but is not an agent or representative of the Government of Canada. Its governing legislation is the Nunavut Waters and Nunavut Surface Rights Tribunal Act (NWSRTA), which provides that the Tribunal has been established for the purpose of providing an independent arbitrator for the resolution of the following disputes: “Access to Land” involving surface and sub-surface IOL and Non-IOL land in Nunavut for a variety of commercial purposes; and   “Claims for Compensation” arising from development activity in Nunavut

Access to Land and Natural Resources in Nunavut Access to IOL in Nunavut   If agreement between a developer and an RIA cannot be reached with respect to Access to IOL in Nunavut for the purpose of: Exercising mineral rights (extracting minerals) (NWSRTA s.133) Prospecting for minerals (NWSRTA s.134) Commercial purposes other than the exercising of mineral rights (NWSRTA s.136) Removing construction materials (NWSRTA s.137) the matter may be referred to the NSRT by either party for resolution. The NSRT may make an order allowing the developer to enter onto IOLs to prospect for minerals or to exercise mineral rights (extract minerals) under such terms and conditions as the NSRT determines.

Access to Land and Natural Resources in Nunavut Access to Cross IOL to Exercise Mineral Rights on Non-IOL If agreement between a developer and an RIA cannot be reached with respect to Access to Cross IOL in Nunavut for the purpose of exercising mineral rights (extracting minerals) from Non-IOL (NWSRTA s.135) the matter may be referred to the NSRT by either party for resolution. The NSRT may make an order allowing the developer to cross IOL to exercise mineral rights (extract minerals) on Non- IOL under such terms and conditions as the NSRT determines.

Access to Land and Natural Resources in Nunavut Access to Non-IOL to Exercise Mineral Rights on Non-IOL If agreement between a developer and a private owner of non-IOL cannot be reached with respect to access to Non-IOL in Nunavut for the purpose of exercising mineral rights (extracting minerals) from Non-IOL (NWSRTA s.144) the matter may be referred to the NSRT by either party for resolution. The NSRT may make an order allowing the developer to enter onto Non-IOL to exercise mineral rights (extract minerals) under such terms and conditions as the NSRT determines.

Claims for Compensation Arising from Development Activity in Nunavut Types of Claims for Compensation If agreement cannot be reached between a developer and an RIA or an individual Inuit person as a result of: Development activity causing loss or damage involving wildlife, including loss or damage to harvesting equipment, present and future loss of income from the harvesting of wildlife or present and future loss of wildlife harvested for personal use (NWSRTA s.153). Development activity causing loss or damage involving carving stone and other specified substances on IOL (NWSRTA s.150). Development activity causing loss or damage involving carving stone on Non-IOL (NWSRTA s.151). Obtaining access to cross IOL for commercial purposes (NWSRTA s.136). Obtaining access to cross IOL for the purpose of removing construction materials (NWSRTA s.137). Obtaining access to IOL for the purpose of exercising a mineral right (NWSRTA s.144).  a claim may be made to the NSRT and the NSRT may make an award of compensation.

Claims for Compensation Arising from Development Activity in Nunavut Determining Appropriate Compensation In determining the amount of compensation that is payable under an entry order onto IOL or Non-IOL, the Tribunal may consider such factors as it considers appropriate, including: The market value of the land. The loss of the use of the land to the owner or occupant of the land. Any damage that may be caused to the land. Any nuisance and inconvenience, including noise, to the owner or occupant of the land. Any reasonable expenses that may be incurred by the owner or occupant of the land. Any reasonable costs incurred by the owner or occupant of the land in connection with an Application to the NSRT and NSRT Hearing. (NWSRTA s.147).

Making an Application to the NSRT for Access to Land and Natural Resources in Nunavut