26 SURFACE RIGHTS BOARD

26.1 GENERAL

26.1.1
A Surface Rights Board (“the Board”) shall be established as an institution of public government by legislation and shall have jurisdiction over matters relating to surface entry and compensation as set out in this agreement or legislation.

26.1.2
Members of the Board shall be residents of the Northwest Territories. When dealing with Gwich’in lands, the Board shall act through a panel of its members at least one of whom shall be a resident of the settlement area.

26.1.3
The costs of the Board shall be the responsibility of government. The Board shall prepare an annual budget, subject to review and approval by government.

26.2 POWERS AND RESPONSIBILITIES

26.2.1
The Board shall have jurisdiction to hear and determine any matter referred to it in this agreement and assigned to it by legislation including the power to:

1. receive submissions for dispute resolution when the holders of surface or subsurface commercial interests do not reach an agreement regarding the use of the surface with the owner or occupier of the surface;

2. grant right -of-entry orders whether or not compensation for entry has been determined, but the Board may not refuse to grant a right-of-entry order where an applicant has a right of access to Gwich’in lands;

3. attach conditions to right-of-entry orders which are not inconsistent with the approved terms and conditions pursuant to 24.3 and 24.4 and such conditions may include rights of the owner or occupier of the surface to verify the authorized use of the surface;

4. determine compensation for the use of the surface;

5. determine compensation for unforeseen damage resulting from entry;

6. prescribe rules and procedures for any negotiations required by this agreement, including the establishment of a reasonable time period for negotiations, subject to any limits prescribed by legislation, after which applications may be made for a right-of-entry order;

7. periodically review any right-of-entry order, any terms and conditions thereof, and compensation;

8. terminate a right-of-entry order, after a hearing, where lands are no longer being used for the purpose authorized; and

9. award costs.

26.2.2
In determining compensation payable in respect of Gwich’in lands, the Board shall consider all relevant factors, including:

1. the market value of the land;

2. loss of use of the land to the Gwich’in;

3. effect on wildlife harvesting;

4. adverse effect of the use upon lands retained by the Gwich’in;

5. damage which may be caused to the land used;

6. nuisance, inconvenience and noise;

7. the cultural and other special value of the land to the Gwich’in;

8. the cost associated with any inspection rights set out in a right-of-entry order; and

9. such other factors as may be provided for in the legislation;

but shall not consider the reversionary value of the land after the use terminates, or any entry fee payable.

26.2.3
Prior to exercising a right-of-entry order on Gwich’in lands, the holder of a surface or subsurface interest shall be required to pay to the Gwich’in Tribal Council an entry fee, to be prescribed by legislation, and 80 percent of the last compensation offer made before the matter was referred to the Board.

26.2.4
A compensation hearing in respect of Gwich’in lands shall be held not later than 30 days from the date of the right-of-entry order.

26.3 INTERIM MEASURE

26.3.1
In the event that surface rights legislation is not in effect by the date of settlement legislation, any matter which is to be determined by the Surface Rights Board pursuant to this agreement shall, until such time as surface rights legislation is in effect, be determined by arbitration pursuant to chapter 6, except that where the resolution of any matter respecting the exploration, development and production of minerals is provided for in legislation, such legislation shall apply until such time as surface rights legislation comes into effect.

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