23 EXPROPRIATION OF SETTLEMENT LANDS

23.1.1
The provisions of this chapter apply only to settlement lands.

23.1.2
It is of fundamental importance to maintain the quantum and integrity of settlement lands. Therefore, as a general principle, such lands shall not be expropriated.

23.1.3
Notwithstanding 23.1.2, settlement lands may be expropriated by an expropriating authority in accordance with legislation as modified by the provisions of this chapter.

23.1.4

1. Expropriation of settlement land shall require the consent of the Governor in Council in the case of an act of Parliament, or the Executive Council of the Government of the Northwest Territories in the case of an act of the Northwest Territories.

2. Notice of the intention of an expropriating authority to seek the approval of the Governor in Council or the Executive Council, as the case may be, shall be given to the Gwich’in Tribal Council by the expropriating authority.

23.1.5
Where the effect of an expropriation would be to reduce the quantum of settlement lands below the quantum of such lands as set out in 18.1.2 (“initial quantum”), compensation shall include lands of at least sufficient quantum to restore the total quantum of such lands to the initial quantum less any quantum held as credit pursuant to 23.1.18. The initial quantum shall be adjusted to reflect any change to the quantum of settlement lands resulting from an exchange of lands pursuant to 27.2.1 or from an adjustment of municipal boundaries pursuant to 22.5.3.

23.1.6
An expropriating authority shall provide the Gwich’in Tribal Council with notice of the lands required and an opportunity to negotiate the location, extent and nature of the interest required by the expropriating authority.

23.1.7
As a general principle, compensation to be offered fOr lands shall be the provision of alternative lands of equivalent significance and value as the expropriated lands.

23.1.8
Lands offered or awarded as compensation for expropriated lands shall be in the settlement area.

23.1.9
Subject to 23.1.5, if the provision of alternative lands of equivalent significance and value is not reasonably possible, or is not agreed upon by the Gwich’in Tribal Council and the expropriating authority, compensation shall be in money or any combination of land and money.

23.1.10
Where an expropriating authority is unable to provide lands as compensation to the Gwich’in, government shall make lands available to the expropriating authority by sale or otherwise providing that lands are available.

23.1.11
In determining the value of lands for the purpose of compensation, the value of the lands for the purpose of harvesting of wildlife and the cultural or other special value to the Gwich’in shall be taken into account.

23.1.12
In the event the Gwich’in Tribal Council and the expropriating authority do not agree on compensation, the matter shall be referred to the dispute resolution provisions of chapter 6. Subject to 23.1.5, 23.1.7 and 23.1.8, an arbitrator may make an award in land, money or any combination thereof and, where appropriate, costs and interest. The arbitrator shall not award any land which is subject to a fee simple interest. The arbitrator shall not award any land which is subject to a third party interest, less than a fee simple interest, unless the Gwich’in Tribal Council, the expropriating authority and, in the case of lands provided pursuant to 23.1.10, government agree, in which case the third party interest shall continue in accordance with its terms and conditions, including any rights of renewal, replacement, extension of term or transfer associated therewith.

23.1.13
The Gwich’in Tribal Council and the expropriating authority may agree not to refer the determination of compensation to arbitration but to determine compensation pursuant to the expropriating authority’s statutory procedure. In such cases the statutory procedure shall be deemed to include the following:

1. service of a notice of intention to expropriate;

2. a requirement to offer compensation;

3. a provision for a compensation hearing;

4. a requirement for compensation in accordance with 23.1.7, 23.1.9 and 23.1.11; and

5. power to award costs with interest.

23.1.14
Nothing in this chapter is intended to eliminate or duplicate any legislative requirement for a public hearing or inquiry into the necessity of an expropriation.

23.1.15
The provisions of 23.1.12 do not apply to expropriations under the National Energy Board Act, R.S. 1985, c. N-7, except that:

1. an arbitration committee appointed under that act to determine compensation shall include at least one nominee of the Gwich’in Tribal Council;

2. the arbitration committee shall take into account the cultural or other special value of the land to the Gwich’in in determining the value of the land;

3. the arbitration committee may determine that compensation shall be in the form of land of the expropriating authority, or money, or any combination thereof; and

4. the arbitration committee shall not award any land which is subject to a third party right, title or interest unless the Gwich’in Tribal Council, the expropriating authority and, in the case of lands provided pursuant to 23.1.10, government, agree, in which case the third party right, title or interest shall continue, in accordance with its terms and conditions, including any rights of renewal, replacement, extension of term or transfer associated therewith.

23.1.16
Any lands which are expropriated shall no longer be settlement lands. Lands acquired by the Gwich’in under these provisions shall be settlement lands.

23.1.17
Where lands which have been expropriated are, in the opinion of the expropriating authority, no longer required, the Gwich’in Tribal Council may reacquire such lands at a price to be established by the expropriating authority. The expropriating authority may not dispose of the lands to any person who is not a participant for a price less than that offered first to the Gwich’in. Lands so reacquired by the Gwich’in shall not be settlement lands unless government so agrees.

23.1.18
Where government and the Gwich’in Tribal Council agree, the selection and conveyance of land to replace expropriated land may be deferred, and the Gwich’in credited for such lands. The Gwich’in may later exchange any such credits for such lands as agreed to by the parties.

23.1.19
The Gwich’in shall not be liable for any capital gains tax in respect of the expropriation of settlement lands. Canada shall be liable for any such tax.

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