Vol. 150, No. 10 — March 5, 2016

Regulations Identifying Provisions of the Laws of the Legislature of Yukon Conferring Rights of Access for the Purpose of the Exercise of a Mineral Right

Statutory authority

Yukon Surface Rights Board Act

Sponsoring department

Department of Indian Affairs and Northern Development

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

A dispute pertaining to land access may arise between a person holding a right to the surface of the land and a person who has a right of access to that land by virtue of a mineral right.

Pursuant to section 65 of the Yukon Surface Rights Board Act, when a dispute pertains to access to non-settlement land in the Yukon, the Yukon Surface Rights Board may make orders to interpret a right-of-access provision of a law of the Legislature of Yukon in relation to a mineral right (prospecting, mining, construction and maintenance of structures). However, the Yukon Surface Rights Board cannot make such orders until regulations that identify those provisions are made.

Currently, the Yukon Surface Rights Board cannot accept applications pursuant to section 65 as no regulations have been made on this matter. The proposed Regulations Identifying Provisions of the Laws of the Legislature of Yukon Conferring Rights of Access for the Purpose of the Exercise of a Mineral Right address this issue.

Background

The Yukon Surface Rights Board Act was brought into force in 1995 to fulfill an obligation under the Yukon Umbrella Final Agreement. The Act established the Yukon Surface Rights Board to adjudicate access disputes between surface and mineral rights holders of settlement and non-settlement lands in Yukon. The Yukon Surface Rights Board may determine compensation and issue binding access orders to resolve these disputes. On non-settlement land, it may also make orders that interpret a right-of-access provision of a law of the Legislature of Yukon in relation to a mineral right.

When the parties to a dispute are unable to resolve their differences, one of the parties may apply to the Yukon Surface Rights Board. The Yukon Surface Rights Board process is intended to be the last means of resolving disputes. The parties must therefore show that they have attempted to resolve their dispute before they apply to the Yukon Surface Rights Board for an order.

When the Yukon Surface Rights Board Act came into force, the jurisdiction of the Yukon Surface Rights Board, with respect to section 65, was limited to three provisions in federal legislation (subsection 5.01(1) of the Canada Oil and Gas Operations Act, section 17 of the Yukon Placer Mining Act and section 12 of the Yukon Quartz Mining Act) pertaining to mineral rights and the associated right of access on non-settlement land of which a person, other than Government, had an interest or right in the surface.

In 1998, as a result of the Canada Yukon Oil and Gas Accord, section 65 of the Yukon Surface Rights Board Act was amended to remove the reference to subsection 5.01(1) of the Canada Oil and Gas Operations Act. A regulation-making power was added to identify mineral rights under territorial legislation for the purpose of section 65.

In 2002, the Yukon Northern Affairs Program Devolution Transfer Agreement was implemented. This led to the creation of territorial legislation to replace federal natural resource management legislation administered by the Minister of Indian Affairs and Northern Development. The federal Yukon Placer Mining Act and Yukon Quartz Mining Act were repealed and the Territorial Lands Act was amended so as to have no application in Yukon. References to those Acts in section 65 of the Yukon Surface Rights Board Act were replaced with a regulation-making power in section 78 for prescribing any provision of a law of the Legislature of Yukon that confers a right of access to non-settlement land in relation to a mineral right.

As a result of these changes, the Yukon Surface Rights Board no longer has authority to make an order interpreting a right of access related to a mineral right on non-settlement land until such a time as regulations for this purpose are made.

Objectives

Occasionally, disputes occur between surface and mineral rights holders on non-settlement lands in Yukon. The making of the proposed Regulations Identifying Provisions of the Laws of the Legislature of Yukon Conferring Rights of Access for the Purpose of the Exercise of a Mineral Right is necessary to fill a gap in the regulatory regime in Yukon. While the regulations-making provisions have existed in the legislation for a number of years, no regulations have been made to date. The proposed Regulations will allow the Yukon Surface Rights Board to make orders that interpret a right of access provision of a law of the Legislature of Yukon in relation to a mineral right. This interpretation will only be in relation to the right of access pertaining to the dispute in question.

The proposed Regulations will make clear which provision of which law of the Legislature of Yukon the Yukon Surface Rights Board will have authority to interpret. This ability to make interpretations may result in speeding up the resolution of the dispute by clearing up any question pertaining to the access right itself.

Description

The proposed Regulations Identifying Provisions of the Laws of the Legislature of Yukon Conferring Rights of Access for the Purpose of the Exercise of a Mineral Right will list the provisions contained in the Quartz Mining Act (Yukon), the Placer Mining Act (Yukon), the Oil and Gas Act (Yukon) and the Coal Regulation (Yukon) that confer a right of access for the purposes of the exercise of a mineral right:

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to this proposal, as there are no costs to small business.

Consultation

On August 6, 2014, Indigenous and Northern Affairs Canada provided a consultation draft of the proposed Regulations together with a supporting letter explaining the context of the draft Regulations to all Yukon First Nations, the Council of Yukon First Nations, the Gwich’in Tribal Council, the Yukon Surface Rights Board, the Government of Yukon, and representative organizations of the mining and the oil and gas industries, for review and comments. Comments were requested by October 31, 2014.

Two groups, the Government of Yukon and the Yukon Surface Rights Board, provided written comments. While both groups are supportive of the proposed Regulations, their comments focused on the reasons for including certain provisions of the laws of the Legislature of Yukon in the draft Regulations that they believed should not form part of the proposed Regulations. Following discussions with these groups, Indigenous and Northern Affairs Canada agreed to remove a number of provisions from the proposed Regulations. The provisions removed did not confer a right of access but were in fact complementary to provisions already listed that did confer a right of access.

No comments were received from Yukon First Nations and the Council of Yukon First Nations. On April 14, 2015, a second consultation draft of the proposed Regulations was provided to these groups. No comments were received by the requested date of May 15, 2015.

Rationale

The proposed Regulations Identifying Provisions of the Laws of the Legislature of Yukon Conferring Rights of Access for the Purpose of the Exercise of a Mineral Right fulfill a land claim obligation. In furtherance of the Action Plan to Improve Northern Regulatory Regimes, announced by the Minister of Indian Affairs and Northern Development in May 2010, the proposed Regulations fill a void in the surface rights dispute resolution process in Yukon by allowing the Yukon Surface Rights Board to interpret provisions related to disputes between surface and mineral rights holders on non-settlement land in Yukon.

The proposed Regulations will not create a new stream of business. The Yukon Surface Rights Board does not anticipate any increase in activity because the likelihood of a request being made to the Board with regard to interpretation of a section of Yukon mineral legislation is very low. However, the consequences of not being able to make an interpretation if one were requested may be significant. The Yukon Surface Rights Board does not anticipate any additional costs.

The use of regulations for this purpose is the best solution to resolve the outlined issue and it fulfills the intent of the enabling legislation and the land claim.

Implementation, enforcement and service standards

The proposed Regulations Identifying Provisions of the Laws of the Legislature of Yukon Conferring Rights of Access for the Purpose of the Exercise of a Mineral Right will come into force on the day on which they are registered.

As the proposed Regulations do not impact the role or mandate of Indigenous and Northern Affairs Canada, no additional mechanisms to ensure compliance with these proposed Regulations are needed from a federal government perspective.

The Yukon Surface Rights Board will have to make a few additions or modifications to its “Guide to Making an Application to the Yukon Surface Rights Board” and to its application form. Ongoing training for Board members will be adjusted to include material related to this new jurisdiction.

Contact

Gilles Binda
Senior Advisor
Resource Policy and Programs
Northern Affairs Organization
Indigenous and Northern Affairs Canada
Gatineau, Quebec
Telephone: 613-290-3845
Fax: 819-934-0584
Email: Gilles.Binda@aadnc-aandc.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to paragraph 78(f) (see footnote a) of the Yukon Surface Rights Board Act (see footnote b), proposes to make the annexed Regulations Identifying Provisions of the Laws of the Legislature of Yukon Conferring Rights of Access for the Purpose of the Exercise of a Mineral Right.

Interested persons may make representations concerning the proposed regulation within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Gilles Binda, Senior Advisor, Resource Policy and Programs Directorate, Aboriginal Affairs and Northern Development Canada, 15 Eddy Street, Floor 10, Room 10F7, Gatineau, Quebec K1A 0H4 (tel.: 613-290-3845; fax: 819-934-0584; email: Gilles.Binda@aadnc-aandc.gc.ca).

Ottawa, February 25, 2016

Jurica Čapkun
Assistant Clerk of the Privy Council

Regulations Identifying Provisions of the Laws of the Legislature of Yukon Conferring Rights of Access for the Purpose of the Exercise of a Mineral Right

Identified Provisions

Identified provisions

1 The provisions set out in the schedule are the identified provisions of the laws of the Legislature of Yukon for the purposes of section 65 of the Yukon Surface Rights Board Act.

Coming into Force

Registration

2 These Regulations come into force on the day on which they are registered.

SCHEDULE

(Section 1)

Identified Provisions

Item

Column 1

Provisions

Column 2

Law or Regulation

1

section 12

Quartz Mining Act

2

section 17, paragraph 48(c) and subsection 55(1)

Placer Mining Act

3

subsection 69(1)

Oil and Gas Act

4

section 4 and subsection 17(1)

Coal Regulation

[10-1-o]