Inuvialuit
Index
Traditional
Territories Index
CHAPTER 13 - WILDLIFE COMPENSATION
Table of Contents
Wildlife
Compensation
Definitions
and General Principles
Wildlife
Impact Assessment
Financial
Responsibility
Liability
For Damage
Recourses
of the Inuvialuit
Procedure
For Claims, Mediation and Arbitration
Legal
Rights and Recourses
- 13.(1) The objectives of this section are:
- (a) to prevent damage to wildlife and its habitat and to avoid
disruption of Inuvialuit harvesting activities by reason of development;
and
- (b) if damage occurs, to restore wildlife and its habitat as far as is practicable to its original state and to compensate Inuvialuit hunters, trappers and fishermen for the loss of their subsistence or commercial harvesting opportunities.
Definitions and General Principles
- 13.(2) In this section,
- "actual wildlife harvest loss" means provable loss
or diminution of wildlife harvesting or damage to property used in harvesting
wildlife, or both;
- "future harvest loss" means provable damage to habitat or disruption of harvestable wildlife having a foreseeable negative impact on future wildlife harvesting.
- 13.(3) Subject to this section, the Inuvialuit shall be compensated for actual wildlife harvest loss resulting from development in the Inuvialuit Settlement Region.
- 13.(4) Subject to this section, the Inuvialuit shall benefit from environmental protection measures designed to reduce future harvest loss resulting from development in the Inuvialuit Settlement Region.
- 13.(5) The provisions of this section do not apply to development activities on lands owned by the Inuvialuit under paragraph 7(1)(a) except developments proposed for lands presently the subject of outstanding leases or other existing rights.
- 13.(6) Where, in accordance with section 10, Participation Agreements are entered into that by voluntary agreement establish mitigative and remedial obligations for developers, subsection (16) does not apply.
- 13.(7) Every proposed development of consequence to the Inuvialuit
Settlement Region that is likely to cause a negative environmental impact
shall be screened by the Screening Committee to determine whether the development
could have a significant negative impact on present or future wildlife harvesting.
- 13.(8) If the Screening Committee determines that a proposed development could have a significant negative impact on present or future wildlife harvesting, it shall refer the proposal for an environmental impact assessment and review in the manner provided by subsections (9) and (10).
- 13.(9) Where a proposed development is subject to environmental impact review that, in the opinion of the Screening Committee, adequately encompasses or will encompass the assessment and review function and includes or will include in its evaluation adequate terms and conditions of development and limits of liability, the Screening Committee shall refer the proposal to the body carrying out the environmental impact review.
- 13.(10) If, in the opinion of the Screening Committee, the review body does not or will not adequately incorporate within its review each element of the process set out in subsection (9), or if the review body declines to do so, the proposal shall be referred to the Review Board.
- 13.(11) Where, pursuant to subsection (10), a proposal is referred to the Review Board, it shall, on the basis of the evidence and information before it, recommend to the government authority empowered to approve the proposed development:
- (a) terms and conditions relating to the mitigative and remedial
measures that it considers necessary to minimize any negative impact
on wildlife harvesting; and
- (b) an estimate of the potential liability of the developer, determined on a worst case scenario, taking into consideration the balance between economic factors, including the ability of the developer to pay, and environmental factors.
- 13.(12) The Government agrees that every proposed development of consequence to the Inuvialuit Settlement Region that is within its jurisdiction and that could have a significant negative impact on wildlife habitat or on present or future wildlife harvesting will be authorized only after due scrutiny of and attention to all environmental concerns and subject to reasonable mitigative and remedial provisions being imposed.
- 13.(8) If the Screening Committee determines that a proposed development could have a significant negative impact on present or future wildlife harvesting, it shall refer the proposal for an environmental impact assessment and review in the manner provided by subsections (9) and (10).
- 13.(13) Every developer, other than a government but including
a Crown corporation, shall be required to prove financial responsibility
before being authorized to undertake any development in the Inuvialuit Settlement
Region.
- 13.(14) The government authority empowered to permit the development and set the terms and conditions thereof may require a developer to provide for and ensure financial responsibility with respect to the obligations and undertakings provided in this section in the form of a letter of credit, guarantee or indemnity bond or any other form satisfactory to the government authority.
- 13.(15) Where it is established that actual wildlife harvest loss
or future harvest loss was caused by development, the liability of the developer
shall be absolute and he shall be liable without proof of fault or negligence
for compensation to the Inuvialuit and for the cost of mitigative and remedial
measures as follows:
- (a) where the loss was caused by one developer, that developer
shall be liable;
- (b) where the loss was caused by more than one developer, those developers shall be jointly and severally liable; and
- (c) where the loss was caused by development generally, but is not attributable to any specific developer, the developers whose activities were of such nature and extent that they could reasonably be implicated in the loss shall be jointly and severally liable.
- (b) where the loss was caused by more than one developer, those developers shall be jointly and severally liable; and
- 13.(16) Subject to subsections (5) and (6), if any developer who has caused actual wildlife harvest loss or future harvest loss is unable or fails to meet his responsibilities therefor, Canada acknowledges that, where it was involved in establishing terms and conditions for the development, it has a responsibility to assume the developer's liability for mitigative and remedial measures to the extent practicable.
- 13.(17) No recourse pursuant to subsection (18) may be taken against a developer unless a claim is made under subsection (19) within three years from the time when the loss in respect of which the recourse is exercised occurred or first occurred, as the case may be, or could reasonably be expected to have become known to those affected thereby.
- 13.(18) Where actual wildlife harvest loss or future harvest loss
results from development, the Inuvialuit may exercise the following recourses:
- (a) respecting actual wildlife harvest loss, Inuvialuit hunters,
trappers and fishermen who depend on hunting, trapping or fishing for
a material part of their gross income have the right to obtain compensation
for damage to or loss of harvesting equipment and for loss or reduction
of hunting, trapping or fishing income. Inuvialuit claimants may act
individually or collectively or through duly authorized representatives,
subject to the right of the other parties to verify the representative
quality or capacity of the group or representative and the validity
of the claims. The types of compensation that may be claimed include
the cost of temporary or permanent relocation, replacement of equipment,
reimbursement in kind subject to harvestable quotas, provision of such
wildlife products as may be obtainable under existing Acts and regulations,
payment in lump sum or by installments or any reasonable combination
thereof. The claimant shall be entitled to indicate his preference as
to type of compensation in making his claim, but the compensation award
shall be subject to subsections (22) and (23);
- (b) respecting actual wildlife harvest loss, Inuvialuit who harvest renewable resources for subsistence purposes have the right to obtain compensation for damage to or loss of harvesting equipment and for any material reduction in wildlife take or harvest. Inuvialuit claimants may act individually or collectively or through duly authorized representatives, subject to the right of the other parties to verify the representative quality or capacity of the group or representative and the validity of the claims. For greater certainty, the subsistence harvester may claim compensation measured by reference to his prior total take or harvest, notwithstanding that some part or all of it may have been directed to or used by others. The types of compensation that may be claimed include the cost of temporary or permanent relocation, replacement of equipment, reimbursement in kind subject to harvestable quotas, provision of such wildlife products as may be obtainable under existing Acts and regulations, payment in lump sum or by installments or any reasonable combination thereof. The claimant shall be entitled to indicate his preference as to type of compensation in making his claim, but the compensation award shall be subject to subsections (22) and (23); and
- (c) respecting future harvest loss, any definable Inuvialuit group or community affected, including consumers of renewable resource products, collectively or through duly authorized representatives, subject to the right of the other parties to verify the representative quality or capacity of the group or representative and the validity of the claims, have the right to seek recommendations of the Arbitration Board pursuant to section 18 with respect to remedial measures, to the extent reasonably practicable, including cleanup, habitat restoration and reclamation. Such recourse shall be governed by subsection (24). The obligation of a developer for the taking of mitigative and remedial measures is subject to any limits established by the authority empowered to approve the proposed development.
- (b) respecting actual wildlife harvest loss, Inuvialuit who harvest renewable resources for subsistence purposes have the right to obtain compensation for damage to or loss of harvesting equipment and for any material reduction in wildlife take or harvest. Inuvialuit claimants may act individually or collectively or through duly authorized representatives, subject to the right of the other parties to verify the representative quality or capacity of the group or representative and the validity of the claims. For greater certainty, the subsistence harvester may claim compensation measured by reference to his prior total take or harvest, notwithstanding that some part or all of it may have been directed to or used by others. The types of compensation that may be claimed include the cost of temporary or permanent relocation, replacement of equipment, reimbursement in kind subject to harvestable quotas, provision of such wildlife products as may be obtainable under existing Acts and regulations, payment in lump sum or by installments or any reasonable combination thereof. The claimant shall be entitled to indicate his preference as to type of compensation in making his claim, but the compensation award shall be subject to subsections (22) and (23); and
Procedure For Claims, Mediation and Arbitration
- 13.(19) Every claim for actual wildlife harvest loss or future
harvest loss alleged to have resulted from development shall be made in
writing by the appropriate Inuvialuit claimant by means of a notice given
by the claimant to the developer.
- 13.(20) During the sixty (60) day period following the giving of the notice referred to in subsection (19), the claimant and the developer shall attempt to settle the claim and, for that purpose may, by mutual consent, appoint a mediator. If the claim is not settled within that period, the claimant may forward his allegations in writing to the Arbitration Board for hearing and decision in accordance with section 18.
- 13.(21) In order to succeed before the Arbitration Board, the claimant must prove, on a balance of probabilities:
- (a) actual wildlife harvest loss or future harvest loss or
both; and
- (b) that the actual wildlife harvest loss or future harvest loss or both results from development.
- 13.(22) Where recourse is claimed pursuant to paragraph (18)(a) or (b), the onus is on the claimant to prove the loss on a balance of probabilities. The Arbitration Board shall take into account the priorities expressed by the claimant as to the nature of the compensation desired, but if it rules in favour of the claimant it must select the most reasonable type of compensation given the nature and extent of the loss.
- 13.(23) In making an award on the claim pursuant to paragraph (18)(a) or (b), the Arbitration Board shall estimate the duration of the impact of the development on wildlife harvesting and determine compensation accordingly. Saving in exceptional circumstances, the award for compensation should not be made with the intention of providing a guaranteed income in perpetuity and compensation should be on the basis of a diminishing scale for a limited time. The claimant shall, as far as reasonable in the circumstances, mitigate his damages and should subsequent events, including the effect of any mitigative or remedial measures, materially affect the claim, any party to the original proceedings may cause the hearing to be reopened in order that the decision may be rescinded or appropriately varied.
- 13.(24) Where recourse is claimed pursuant to paragraph (18)(c) and a governmental authority has jurisdiction to enforce mitigative and remedial measures, the Arbitration Board, having regard to the terms and conditions established by the authority empowered to authorize the development, shall recommend to that authority appropriate remedial measures if it is satisfied that the claimant has proven, on a balance of probabilities, future harvest loss resulting from development. Where the government authority does not comply with those recommendations, it shall give the reasons therefor in writing within sixty (60) days after the making of the recommendations.
- 13.(20) During the sixty (60) day period following the giving of the notice referred to in subsection (19), the claimant and the developer shall attempt to settle the claim and, for that purpose may, by mutual consent, appoint a mediator. If the claim is not settled within that period, the claimant may forward his allegations in writing to the Arbitration Board for hearing and decision in accordance with section 18.
- 13.(25) The wildlife compensation provisions and procedures in this section are without prejudice to the legal rights and recourses of the parties, but where the provisions of subsections (19) to (23) are applied, the decision of the Arbitration Board is final and binding on the parties to the arbitration, subject only to the review provisions of this Agreement.