Yukon Surface Rights Board Act (S.C. 1994, c. 43)

Marginal note:Land compensation

• 62 (1) If a Yukon first nation requests Crown land as all or part of the compensation, the Board shall

  • (a) determine whether the land is within the traditional territory of the Yukon first nation and is available;

  • (b) determine the value of the land that is available; and

  • (c) order the Government to transfer to the Yukon first nation the amount of the available land that is necessary to provide the compensation in land.

• Marginal note:Balance of compensation

  (2) If the land transferred pursuant to an order under paragraph (1)(c) is not sufficient to provide the compensation in land, the Board shall order the Government to provide the balance of the compensation in any other form or combination of forms.

• Marginal note:Factors

  (3) In determining the value of Crown land that is to be transferred to the Yukon first nation, the Board may consider such factors as it deems appropriate and, without limiting the generality of the foregoing, shall consider

  • (a) the market value of the land;

  • (b) the value of fish and wildlife harvesting and of the gathering of plants on the land to the Yukon first nation;

  • (c) any potential effect of the transfer of the land on settlement land of the Yukon first nation; and

  • (d) any cultural or other special value of the land to the Yukon first nation.

• Marginal note:When land not available

  (4) For the purposes of this section, Crown land is not available if it is

  • (a) land that is subject to a lease or an agreement for sale, unless the Government and the holder of the interest consent to the land being available;

  • (b) land that is determined by the Board to be occupied or used, or required for future use, by any department or agency of a Government or any municipal government, unless the department, agency or government consents to the land being available;

  • (c) land that is within thirty metres of the boundary line between the Yukon Territory and Alaska, British Columbia or the Northwest Territories;

  • (d) land the provision of which to a Yukon first nation would, in the determination of the Board, unreasonably limit the expansion of any community or the access by any person to navigable waters or highways;

  • (e) a highway or highway right-of-way; or

  • (f) any other land that is determined by the Board not to be available.

Designation of Settlement Land

Marginal note:Designation of land

• 63 (1) Where land within the traditional territory of a Yukon first nation is to be transferred, pursuant to an order of the Board or as a result of negotiation, to the Yukon first nation as compensation for the expropriation of settlement land or for any diminution in the value of settlement land resulting from the continuation of a reservation after the date of a declaration under section 5.7.4 of a final agreement, on application by the Minister or Yukon first nation, the Board shall make an order designating the land as

  • (a) category A settlement land, if mines and minerals are included, or as category B settlement land or fee simple settlement land, if they are not included; and

  • (b) developed settlement land or undeveloped settlement land.

• Marginal note:Priority of designation order

  (2) Before making a determination or an order under paragraph 57(1)(b) or (c) or (2)(c) or (d) or 62(1)(b) or (c) in relation to land, the Board shall make an order under subsection (1) designating the land.

Additional Functions of the Board

Marginal note:Additional functions of Board

64 The Board shall, in addition to exercising the powers and performing the duties and functions conferred or imposed on the Board by this Act, exercise the powers and perform the duties and functions conferred or imposed on it by the regulations in relation to any particular parcel of settlement land.

PART IIIMineral Rights Disputes on Non-settlement Land

Marginal note:Order respecting interpretation

65 In the case of a dispute respecting access to non-settlement land between the following persons, the Board shall, on application of either person, make an order interpreting a provision described in paragraph (b) in relation to the right of access for purposes of the dispute:

• (a) a person, other than Government, who has an interest or right in the surface of the land; and

• (b) a person, other than Government, who has, in relation to a mineral right, a right of access on the land under any provision of a law of the Legislature of Yukon identified in regulations made pursuant to paragraph 78(f).

Marginal note:Nature of order

66 For greater certainty, the Board may not, in making an order under section 65 respecting a right of access provided for by a provision referred to in paragraph 65(b), create any right or make that right subject to a term or condition or otherwise restrict that right in a manner not provided for in that provision.

PART IVGeneral

Decisions of the Board

Marginal note:Conditional orders

67 The Board may in any order direct that the order or any provision of the order come into force at a future time or on the happening of a specified contingency, event or condition or on the performance to the satisfaction of the Board, or a named person, of any terms that the Board may impose on any interested party, and the Board may direct that the order or any part of the order has force for a limited time or until the happening of a specified contingency, event or condition.

Marginal note:Costs

68 The costs relating to an application to or a hearing before the Board that are incurred by the parties are in the discretion of the Board and the Board may, by order, award such costs on or before the final disposition of the application.

Marginal note:Reasons for decisions

69 The Board shall give written reasons for every decision that it makes in relation to an application.

Marginal note:Copies

70 As soon as practicable after making a decision in relation to an application, the Board shall give copies of the decision and the reasons for it to the parties.

Marginal note:Proof of orders

71 A document purporting to be an order of the Board, or to be certified by the Chairperson of the Board or any other person authorized by the by-laws as a true copy of such an order, is evidence of the making of the order and of its contents, without proof of the signature or official character of the person appearing to have signed the order or certified the copy.

Marginal note:Order binding on successor

72 An order of the Board is binding on and the rights thereunder extend to any person who subsequently acquires the ownership of or other interest or right in the land to which the order relates and, in the case of an access order, the right of access and the right for which the right of access was acquired.

Marginal note:Enforcement of orders

73 An order of the Board may be made an order of the Supreme Court of the Yukon Territory by filing a certified copy of the order with the registrar of the Court and, when so made, the order is enforceable in the same manner as an order of that Court.

Review of Orders

Marginal note:Findings of fact

74 Subject to sections 75 to 77, a determination of the Board on any question of fact within its jurisdiction is final and binding.

Marginal note:Review by Board

• 75 (1) Subject to subsection (2), the Board may, on application made by any person who was a party to the hearing held in respect of the order or any successor to such a party referred to in section 72, review any of its orders, including an order made under this section, where it appears that there has been a material change in the facts or circumstances relating to the order and shall

  • (a) where it determines that there has been a material change in the facts or circumstances relating to the order that would justify the amendment applied for,

    • (i) if the effects on the settlement land or on the Yukon first nation that owns the land that would be caused as a result of the amendment are significantly detrimental, revoke that order and make a new order accordingly, or

    • (ii) in any other case, amend the order accordingly; or

  • (b) in any other case, dismiss the application.

• Marginal note:Exception

  (2) The Board may not review under this section an order made under section 55, 60, 63 or 65.

Marginal note:Application for judicial review

• 76 (1) Notwithstanding section 18 of the Federal Courts Act, the Federal Court has concurrent original jurisdiction in respect of relief referred to in paragraph 18(1)(b) of that Act, and the Attorney General of Canada, the Territorial Minister or anyone directly affected by the matter in respect of which relief is sought may make an application for judicial review to the Supreme Court of the Yukon Territory for any relief that the applicant could otherwise obtain in respect of the Board by way of an application for an order of or in the nature of mandamus, prohibition or certiorari or by way of an action for a declaration or an injunction.

• Marginal note:Limitation period

  (2) An application for judicial review in respect of a decision or order of the Board must be made within thirty days after the day on which the decision or order was first communicated to the office of the Deputy Attorney General of Canada, the Territorial Minister or the party directly affected by the order, or within such further period as a judge of the Supreme Court may, either before or after the end of those thirty days, fix.

• Marginal note:Powers of Court

  (3) On an application for judicial review, the Supreme Court may

  • (a) order the Board to do any act or thing that it has unlawfully failed or refused to do or has unreasonably delayed in doing; or

  • (b) prohibit, restrain, declare invalid or unlawful, quash, set aside or set aside and refer back for determination in accordance with such directions as it considers appropriate, any decision, order, act or proceeding of the Board.

• Marginal note:Grounds for review

  (4) The Supreme Court may grant relief if it is satisfied that the Board

  • (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

  • (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;

  • (c) erred in law in making a decision or order, whether or not the error appears on the face of the record;

  • (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

  • (e) acted, or failed to act, by reason of fraud or perjured evidence; or

  • (f) acted in any other way that was contrary to law.

• Marginal note:Technical irregularity

  (5) The Supreme Court may refuse any application for judicial review founded solely on a defect in form or other technical irregularity if it finds that no substantial wrong or miscarriage of justice has occurred and, if the technical irregularity was in a decision or order, it may make an order validating the decision or order, effective from such time and on such terms as it considers appropriate.

• Marginal note:Interim orders

  (6) On an application for judicial review, the Supreme Court may make such interim orders as it considers appropriate pending final disposition of the application.

Marginal note:Constitutional questions

• 77 (1) Where the constitutional validity, application or operation of an Act of Parliament or an ordinance of the Yukon Territory, or of a regulation thereunder, is in question before the Supreme Court of the Yukon Territory or the Board in a proceeding under this Act, the Act, ordinance or regulation shall not be adjudged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the Territorial Minister.

• Marginal note:Time of notice

  (2) Except where otherwise ordered by the Supreme Court or Board, the notice shall be served at least ten days before the day on which the constitutional question is to be argued.

• Marginal note:Notice of appeal or application for judicial review

  (3) The Attorney General of Canada and the Territorial Minister are entitled to notice of any appeal or application for judicial review made in respect of the constitutional question.

• Marginal note:Evidence

  (4) The Attorney General of Canada and the Territorial Minister are entitled to adduce evidence and make submissions to the Supreme Court or Board in respect of the constitutional question and, where either Minister makes submissions, that Minister shall be deemed to be a party to the proceedings for the purposes of any appeal in respect of the question.

Regulations and Orders

Marginal note:Regulations

78 The Governor in Council may make regulations

• (a) prescribing what constitutes a material conflict of interest for the purposes of subsection 33(2);

• (b) respecting the maintenance of public records by the Board;

• (c) respecting the amount of security that may be required to be given under a term or condition of an order of the Board made under this Act;

• (d) setting out parameters, in addition to those mentioned in this Act, respecting the entry fee that may be provided for by the Board in an access order made under subsection 42(1);

• (e) prescribing, for the purposes of subsections 43(9), 56(4) and 61(4), a rate of interest or rules for determining the rate of interest that may be payable on compensation payments;

• (f) identifying, for the purposes of section 65, any provision of a law of the Legislature of Yukon that confers a right of access for purposes of the exercise of a mineral right;

• (f.1) [Repealed, 2002, c. 7, s. 271]

• (g) authorizing the Board to exercise the additional powers or perform the additional duties or functions specified in a final agreement in relation to any particular parcel of settlement land; and

• (h) generally for carrying the purposes and provisions of this Act into effect.

Marginal note:Amendment of Schedule I

79 The Governor in Council may, by order, amend Schedule I

• (a) by adding to Part I any land claims agreement that is approved, given effect to and declared valid by order made pursuant to the Yukon First Nations Land Claims Settlement Act; or

• (b) by adding to Part II any self-government agreement that is brought into effect by order made pursuant to the Yukon First Nations Self-Government Act.

PART VRelated Amendments and Coming into Force

Related Amendments

80 to 102 [Amendments]

Coming into Force

Marginal note:Coming into force

Footnote ^*103 This Act comes into force on a day to be fixed by order of the Governor in Council.

• Return to footnote ^*[Note: Act in force February 14, 1995, see SI/95-19.]