20 ACCESS
20.1 GENERAL
20.1.1
In this chapter,
“Gwich’in lands” means settlement lands and parcels of Gwich’in municipal lands which are larger than four hectares (approximately 10 acres) and which are not developed Gwich’in municipal lands as defined in 22.4.1.
20.1.2
Except as provided in this chapter, persons who are not participants may only enter, cross or stay on Gwich’in lands and waters overlying such lands with the agreement of the Gwich’in Tribal Council. Any person, other than a person exercising rights pursuant to 20.3.1 or 20.3.3, who contravenes any provision of this chapter shall be considered to be a trespasser.
20.1.3
Access of persons who are not participants to or across:
parcels of developed Gwich’in municipal lands, parcels of Gwich’in municipal lands which are not larger than four hectares (approximately 10 acres) and which are not developed Gwich’in municipal lands, or waters overlying land in (a) and (b), is governed only by laws of general application.
20.1.4
Unless otherwise provided in an agreement with the Gwich’ in Tribal Council, the exercise of access provided in 20.2, 20.3.1, 20.4.2, 20.4.3, 20.4.5 and 20.4.6(b) is subject to the following conditions:
there be no significant damage to Gwich’in lands, and the user shall be responsible for any such damage; there be no mischief committed on Gwich’in lands; and there be no significant interference with Gwich’in use of and peaceable enjoyment of Gwich’in lands.
20.1.5
Unless otherwise provided in an agreement with the Gwich’in Tribal Council, persons using a right of access to or across Gwich’in lands and waters overlying such lands do so at their own risk and have no right of action against the Gwich’in for alleged loss suffered or damage arising therefrom.
20.1.6
Unless otherwise provided by legislation enacted after consultation with the Gwich’in Tribal Council, there shall be no fee or charge attached to the exercise of access provided in 20.2, 20.3.1, 20.3.5, 20.3.6, 20.4.1(a), 20.4.2, 20.4.3, 20.4.5 and 20.4.6(b).
20.1.7
The Gwich’in Tribal Council may propose terms and conditions, other than fees or charges, for the exercise of access pursuant to 20.2, 20.3.1, 20.4.2 or 20.4.3, in accordance with the following:
the Gwich’ in Tribal Council shall consult with government and attempt to reach agreement on the proposed terms and conditions, if agreement cannot be reached, the Gwich’in Tribal Council or the government may refer the matter to arbitration pursuant to chapter 6, and conditions may not be imposed in relation to law enforcement or inspections authorized by law, but may not otherwise establish terms or conditions for the exercise of access rights pursuant to this chapter. This provision is not intended to restrict the establishment of any terms and conditions agreed to by a person to whom such terms or conditions would apply.
Terms and conditions pursuant to (a) may include the identification of areas, locations, seasons or times in respect of which such access is restricted by reason of the protection of the environment; conflict with Gwich’in harvesting or other Gwich’in uses of land; conservation of wildlife and wildlife habitat; protection of Gwich’in communities and camps; and requirements for notice or registration by persons exercising such access.
20.1.8
Any person may enter and stay on Gwich’in lands and waters overlying such lands without prior notice in an emergency.
20.1.9
The rights provided in this chapter for persons who are not participants are subject to legislation.
20.1.10
Where a person has a right of access pursuant to more than one provision in this chapter, that person may have access pursuant to the least restrictive applicable provision.
20.1.11
Subject to restrictions that may be imposed pursuant to this agreement or by legislation, a person may exercise a right of access by any mode of transport.
20.2 PUBLIC ACCESS
20.2.1
Members of the public have the right to use:
navigable rivers and other navigable waters that can be entered from such rivers where such waters overlie Gwich’in lands; portages on Gwich’in lands associated with navigable rivers and other navigable waters that can be entered from such rivers; and waterfront lands within Gwich’in lands associated with navigable rivers and other navigable waters that can be entered from such rivers, for travel by water or for recreation, but these rights do not include the right to harvest wildlife except in accordance with 20.2.2 or to engage in any commercial activity or to establish any permanent or seasonal camp or structure on the lands to which such rights apply, or to travel by motorized vehicle on such waterfront lands.
Locations where the rights of access in (a)(ii) and (iii) are restricted are set out in schedule IX, appendix F.
20.2.2
Members of the public may fish in navigable waters overlying Gwich’in lands identified in schedule X, appendix F, and may have access to these waters and to the associated waterfront lands to exercise this right. Members of the public may use the portages and waterfront lands identified in schedule X, appendix F, to exercise a right to fish. Members of the public may hunt migratory game birds in navigable waters overlying Gwich’in lands identified in schedule XI, appendix F, and may have access to these waters and to the associated waterfront lands to exercise this right. Members of the public may use the portages and waterfront lands identified in schedule XI, appendix F, to exercise a right to hunt migratory game birds. The rights in (a) and (b) do not include the right to engage in any commercial activity or to establish any permanent or seasonal camp or structure on the lands to which such rights apply.
20.2.3
Members of the public may cross Gwich’in lands and waters overlying such lands to exercise a right, interest or privilege on adjacent lands or waters, such as to go to or from their place of work or to or from a place of recreation. Where practicable, such crossings shall take place either on routes designated by the local designated Gwich’in organization or upon prior notice to it. Where any person has a right, title or interest in lands which are, or are surrounded by, Gwich’in lands as of either the date of land withdrawal following land selection or the date of transfer of land where no prior withdrawal takes place, such right, title or interest shall include a right of access across Gwich’in lands and waters overlying such lands to allow the continued use of the right, title or interest.
20.2.4
With the agreement of the Gwich’in Tribal Council, persons conducting research may enter, cross and stay on Gwich’in lands for a reasonable time to conduct research.
20.3 GOVERNMENT ACCESS
20.3.1
Agents, employees, contractors of government and members of the Canadian Armed Forces shall have the right to enter, cross and stay on Gwich’in lands and waters overlying such lands and to use natural resources incidental to such access to deliver and manage government programs and services, to carry out inspections pursuant to law and to enforce laws. Government shall give prior notice of such access to the Gwich’in Tribal Council when, in the opinion of government, it is reasonable to do so.
20.3.2
If government requires the continuous use or occupancy of Gwich’in lands for more than two years, such use or occupancy shall be on terms negotiated between government and the Gwich’in Tribal Council. Failing agreement on the terms, the matter shall be referred to arbitration pursuant to chapter 6.
20.3.3
In addition to access provided by 20.3.1, the Department of National Defence and the Canadian Armed Forces may have access to Gwich’in lands and waters overlying such lands for military manoeuvres after the negotiation of an agreement with respect to contact persons, areas, timing, land use rent, compensation for damages caused to lands or property, and any other matter. If an agreement is not reached, the parties may refer the matter of the terms of the agreement to arbitration pursuant to chapter 6. Nothing in (a) is intended to limit the authority of the Minister of National Defence pursuant to s.257 of the National Defence Act, R.S. 1985, c. N-5.
20.3.4
Government shall give reasonable advance notice of military exercises or operations to local inhabitants of any area to be affected in the settlement area.
20.3.5
Notwithstanding 20.3.2, government may establish, on Gwich’in lands, after consultation with the Gwich’in Tribal Council, navigational aids and safety devices along the shorelines of navigable waters provided that the area occupied by each such navigation aid or safety device shall not exceed:
two hectares (approximately five acres), for range markers and buoy transits; and 30.48 metres (100 feet) by 30.48 metres (100 feet), for single beacons.
20.3.6
Any person authorized by legislation to provide to the public electrical power, telecommunications services or similar public utilities, not to include pipelines for the transmission of hydrocarbons, shall have access to Gwich’in lands and waters overlying such lands to carry out assessments, surveys and studies in relation to proposed services. Such persons shall consult with the Gwich’in Tribal Council prior to exercising such access. Where access under (a) results in damage to Gwich’in lands or interference with Gwich’in use of and peaceable enjoyment of Gwich’in lands, such person shall compensate the Gwich’in in an amount agreed to by that person and the Gwich’in Tribal Council or, failing such agreement, in an amount determined by the Surface Rights Board. Where an interest in Gwich’in lands is required by a person described in (a), such interest shall, in the abs ence of an agreement with the Gwich’in, be acquired pursuant to chapter 23.
20.4 COMMERCIAL ACCESS
20.4.1
Where any person, as of either the date of land withdrawal following land selection or the date of transfer of land where no prior withdrawal takes place, has an existing right to use or operate on lands which become Gwich’in lands or on waters overlying such lands, including land use permits, licences or other rights of access to or across such lands or waters, such right shall continue and shall include any associated benefits and privileges, including:
such renewals, replacements and transfers as might have been granted or permitted had the lands not become Gwich’in lands; and the ability of employees and clients of such existing rights-holders to exercise such rights as may be necessary to permit the existing rights-holders to continue to use or operate on Gwich’in lands or waters overlying Gwich’in lands.
Nothing in (a) is intended to affect the discretion of government to grant or refuse the renewal, replacement, extension of term or transfer of any such right. Any amendment to an existing right described in (a) other than a renewal, replacement, extension of term or transfer of such existing right shall require the agreement of the Gwich’in Tribal Council or, failing such agreement, an order of the Surface Rights Board.
20.4.2
Any person has the right to use, in the course of conducting a commercial activity:
navigable rivers and other navigable waters that can be entered from such rivers where such waters overlie Gwich’in lands; portages on Gwich’in lands associated with navigable rivers and other navigable waters that can be entered from such rivers; and waterfront lands within Gwich’in lands, associated with navigable rivers and other navigable waters that can be entered from such rivers; for travel by water.
The rights specified in (a) must be exercised using the most direct route and by minimizing use of the portages and waterfront lands in (a). The rights specified in (a)(ii) and (iii) are subject to the conditions that:
prior notice be given to the Gwich’in Tribal Council; no permanent or seasonal camp or structure be established on lands to which such rights apply; there be no significant alteration or damage to the lands to which such rights apply; and no commercial activity, other than such activity as is necessarily incidental to travel, be conducted on the lands to which such rights apply.
If any person is unable to comply with the conditions in (b), (c) or 20.1.4, the rights in (a) may only be exercised with the agreement of the Gwich’in Tribal Council, or failing such agreement, an order of the Surface Rights Board. Locations where the rights of access in (a)(ii) and (iii) are restricted are set out in schedule XIV, appendix F.
20.4.3
Any person who requires access across Gwich’in lands and waters overlying such lands to reach adjacent lands or waters for commercial purposes has a right to such access provided that:
the access is of a casual and insignificant nature and prior notice is given to the Gwich’in Tribal Council; or the route used is recognized and being used for such access on a regular basis, whether year round or intermittently, prior to either the date of land withdrawal following land selection or the date of transfer of land where no prior withdrawal takes place, and there is no significant alteration in the use of the route. Subject to the expropriation provisions of this agreement and unless the Gwich’in agree,any access route which may be established or improved after the date of settlement legislation shall remain settlement land and shall not be a highway or public road, by operation of law or otherwise, notwithstanding that the route is established or improved.
20.4.4
Any person who reasonably requires access across Gwich’in lands and waters overlying such lands to reach adjacent lands or waters for a commercial purpose has a right to such access with the agreement of the Gwich’in Tribal Council or, failing such agreement, an order of the Surface Rights Board. Nothwithstanding 26.2.1(b), the Surface Rights Board shall not make an order under (a) unless it is satisfied that such access is reasonably required. The Board shall ensure that any access is by a suitable route least harmful to the Gwich’in.
20.4.5
Notwithstanding 20.4.2, any person licensed to conduct a commercial fishing operation on waters overlying or adjacent to Gwich’in lands has a right of access to the waterfront lands on Gwich’in lands for tying up vessels or attaching nets and has such right of access to waters overlying Gwich’in lands as is required to conduct such commercial fishing operation.
20.4.6
Subject to (b), any person having a right to explore, develop or produce minerals under or on Gwich’in lands has a right of access to Gwich’in lands and waters overlying such lands for the purposes of exploring, developing, producing or transporting minerals with the agreement of the Gwich’in Tribal Council or, failing such agreement, an order of the Surface Rights Board. Notwithstanding 20.4.1, persons having a right to prospect for minerals and to locate claims and who do not require a land use permit for the exercise of such rights, shall have access to Gwich’in lands described in 18.1.2(a) and waters overlying such lands provided that:
notice, including such person’s address, shall be given to the Gwich’in Tribal Council at least seven days prior to entry on such Gwich’in lands; and such notice shall specify the National Topographic System map sheet (1:50,000 scale) which includes the Gwich’in lands to which access is required.
20.4.7
In 20.4.1 to 20.4.6, “any person” includes government and “commercial purposes” includes the exploration for and development, production and transportation of minerals.
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