19 WATER RIGHTS AND MANAGEMENT

19.1.1
In this chapter,

“compensation” means a cash payment, either lump sum or a periodic payment, or non-monetary compensation such as replacement or substitution of damaged or lost property or equipment or relocation or transportation of participants or equipment to a different harvesting locale or a combination of such elements.

19.1.2
Nothing in this chapter is intended to give authority to any person to take or damage Gwich’in lands except in accordance with this agreement.

19.1.3

1. Subject to the provisions of this agreement, the Gwich’in have the exclusive right to use waters which are on or flow through Gwich’in lands when such waters are on or flowing through Gwich’in lands.

2. Gwich’in use of water is subject to legislation in respect of water use.

19.1.4
Government and persons who are not participants having a right or interest in respect of Gwich’in lands the exercise of which requires the use of water, shall have the right to use the water, subject to this agreement and legislation in respect of water use.

19.1.5
Notwithstanding Gwich’in ownership of beds of certain water bodies, government retains the right to protect and manage water and beds of water bodies, and to use water in connection with such right, throughout the settlement area for public purposes including:

1. management and research in respect of wildlife, and wildlife and aquatic habitat;

2. protection and management of navigation and transportation, establishment of navigation aids and devices, and dredging navigable water bodies;

3. protection of water supplies including community water supplies from contamination and degradation;

4. fighting fires;

5. flood control; and

6. research and sampling with respect to water quality and water quantity.

19.1.6
Unless otherwise provided for in legislation, the Gwich’in right to use water shall not interfere with or take away from:

1. rights of navigation and passage on water;

2. use of water for emergency purposes; or

3. any right of access associated with a right to fish or to hunt migratory game birds.

19.1.7

1. Nothing in this agreement shall be construed as granting the Gwich’in property rights in respect of water.

2. The property in water in the settlement area may be determined by legislation in respect of water.

19.1.8
Subject to legislation in respect of the use of water:

1. the Gwich’in have the right to have waters which are on or flow through or are adjacent to Gwich’in lands remain substantially unaltered as to quality, quantity and rate of flow when such waters are on or flow through or are adjacent to Gwich’in lands; and

2. the Gwich’in shall not use water so as to substantially alter the quality, quantity and rate of flow of waters which are on or flow through or are adjacent to Gwich’in lands.

19.1.9
The Gwich’in have a cause of action against any person in respect of any action or use of water not authorized by law, which substantially alters the quality, quantity or rate of flow of waters which are on or flow through or are adjacent to Gwich’in lands, with such remedies as if the Gwich’in had riparian rights.

19.1.10
The Gwich’in Tribal Council shall have standing at all times in a court of competent jurisdiction to seek a declaration of the authority of any person to alter the quality, quantity or rate of flow of water in the settlement area.

19.1.11

1. Government shall use its best efforts to negotiate agreements with other jurisdictions which manage drainage basins shared with the settlement area for the management of water in the shared drainage basin.

2. Government shall consult with the Gwich’in Tribal Council with respect to the formulation of government positions on the management of water in a shared drainage basin before negotiating an agreement pursuant to (a).

19.1.12
Nothing in this agreement shall derogate from the ability of any person to use water for domestic uses as provided in legislation.

19.1.13
Subject to legislation, the Gwich’in have the right to use water without licence or permit for trapping and non-commercial harvesting of wildlife, including transportation relating thereto, or for traditional heritage, cultural and spiritual purposes.

19.1.14
The Land and Water Board shall not grant a licence, permit or authorization that interferes with the rights of the Gwich’in in 19.1.8 unless the Board considers that:

1. there is no alternative which could reasonably satisfy the requirements of the applicant, and

2. there are no reasonable measures whereby the applicant could avoid the interference.

19.1.15
No water use anywhere in the settlement area which, in the opinion of the Land and Water Board, will likely substantially alter the quality, quantity or rate of flow of waters on or flowing through or adjacent to Gwich’in lands, when such waters are on or flowing through or adjacent to Gwich’in lands, shall be authorized by the Land and Water Board unless the applicant for the authorization has entered into an agreement with the Gwich’in Tribal Council to compensate the Gwich’in for loss or damage which may be caused by such alteration, or the Land and Water Board has made an order for compensation under 19.1.16(a).

19.1.16

1. If the Gwich’in Tribal Council and the applicant for a water-use authorization described in 19.1.15 or 19.1.18 do not reach an agreement on compensation within the time limit established by the Land and Water Board, either party may refer the matter of compensation to the Board and the Board shall determine compensation.

2. Notwithstanding 19.1.15 and 19.1.18, the Land and Water Board may authorize a water use described in 19.1.14 and the competent water authority may authorize a water use described in 19.1.18 prior to the Land and Water Board making an order under (a).

19.1.17
In determining the amount of compensation payable to the Gwich’in in respect of a water use described in 19.1.15 or 19.1.18, the Land and Water Board shall consider:

1. the effect of the water use on Gwich’in use of water on or adjacent to Gwich’in lands;

2. the effect of the water use on (3wich’in lands, taking into account any cultural or special value of the lands to the Gwich’in;

3. the nuisance, inconvenience and noise caused by the water use to the Gwich’in on Gwich’in lands;

4. the effect on wildlife harvesting by the Gwich’in; and

5. subject to legislation, such other factors as the Land and Water Board may consider relevant.

19.1.18
Where a water use is proposed outside the settlement area, but within the Northwest Territories, which, in the opinion of the Land and Water Board, will likely substantially alter the quality, quantity or rate of flow of water on or through or adjacent to Gwich’in lands, when such waters are on or flowing through or are adjacent to Gwich’in lands, the water use shall not be authorized by the competent water authority unless the applicant for the water use has entered into an agreement with the Gwich’in Tribal Council under 19.1.15 or the Land and Water Board has made an order under 19.1.16(a).

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