FEDERAL REG

SOR/2016-129: Regulations Identifying the Provisions of the Laws of the Legislature of Yukon Conferring Rights of Access for the Purpose of the Exercise of a Mineral Right

REGISTRATION OF FEDERAL REGULATION - VIA OIC DATABASE, PRIOR TO PART II OF THE GAZETTE

Registered
June 13, 2016


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... (Click for more)


Published on June 13, 2016

Bill Summary

SOR/2016-129: Regulations Identifying the Provisions of the Laws of the Legislature of Yukon Conferring Rights of Access for the Purpose of the Exercise of a Mineral Right

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 could not make such orders until regulations that identify those provisions were made. Until now, the Yukon Surface Rights Board could not accept applications pursuant to section 65 as no regulations had been made on this matter. The Regulations Identifying the 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 fulfil an obligation under the Yukon Umbrella Final Agreement. It 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 which 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. Therefore, the parties must show 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 to which another 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 the 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 authority 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 Regulations Identifying the Provisions of the Laws of the Legislature of Yukon Conferring Rights of Access for the Purpose of the Exercise of a Mineral Right 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 had been made to date. The Regulations allow the Yukon Surface Rights Board to make orders which 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 Regulations make it clear as to which provision of which law of the Legislature of Yukon that the Yukon Surface Rights Board will have authority to make an interpretation. 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 Regulations Identifying the Provisions of the Laws of the Legislature of Yukon Conferring Rights of Access for the Purpose of the Exercise of a Mineral Right 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 Section 12 of the Quartz Mining Act (Yukon) pertains to the access right to acquire mineral claims. Section 17, paragraph 48(c) and subsection 55(1) of the Placer Mining Act (Yukon) pertain to the access right to acquire mineral claims, the access right to mine a claim and for the construction and maintenance of structures and the access right to divert, take, use or sell water from a stream or lake and the right of way through and entry on any mining property for the purpose of constructing and repairing ditches and flumes to convey that water. Subsection 69(1) of the Oil and Gas Act (Yukon) pertains to the access right to exercise rights under a disposition or a licence. Section 4 and subsection 17(1) of the Coal Regulation (Yukon) pertain to the access right to stake out a location for the mining of coal and to the access right to acquire mineral claims. “One-for-One” Rule The “One-for-One” Rule does not apply to these Regulations, as there is no change in administrative costs to business. Small business lens The small business lens does not apply to these Regulations, as there are no costs on 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, 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 which 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. These removed provisions did not confer a right of access but were in fact complementary to already listed provisions 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. The proposed Regulations were prepublished in the Canada Gazette, Part I, on March 5, 2016, for a consultation period of 30 days. No comments were received. Rationale The Regulations Identifying the 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. The 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 Regulations do 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. The Yukon Surface Rights Board does not anticipate any additional costs. The use of a regulation for this purpose is the best solution to resolve the outlined issue and it fulfils the intent of the enabling legislation and the Umbrella Final Agreement. Implementation, enforcement and service standards The Regulations Identifying the Provisions of the Laws of the Legislature of Yukon Conferring Rights of Access for the Purpose of the Exercise of a Mineral Right come into force on the day on which they are registered. As the Regulations do not impact Indigenous and Northern Affairs Canada’s role or mandate, no additional mechanisms to ensure compliance with these Regulations are needed from a federal government perspective. The Guide to Making an Application to the Yukon Surface Rights Board and its application form allow for applications to be made pursuant to section 65 of the Yukon Surface Rights Board Act. Ongoing training for Board members will include material related to this new jurisdiction. Contact Gilles Binda Senior Advisor Resource Policy and Programs Natural Resources and Environment Branch Northern Affairs Organization Indigenous and Northern Affairs Canada Gatineau, Quebec K1A 0H4 Telephone: 613-290-3845 Fax: 819-934-0584 Email: [email protected] Footnote a S.C. 2002, c. 7, s. 271 Footnote b S.C. 1994, c. 43

This Bill does not amend any statutes.

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