Date: 20000314
Docket: T-909-99
BETWEEN:
CARCROSS/TAGISH FIRST NATION
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] As part of a comprehensive land settlement and self-government agreement which took 20 years of negotiation to achieve, Aboriginal People in the Yukon, to whom the Indian Act applies, have agreed to give up their tax exemption. The question to be answered is: as of when?
A. Factual context 1
[2] The following is a basic outline of the context in which this application arises:
| 1. The Government of Canada ("Canada"), the Government of the Yukon ("Yukon") and the Yukon First Nations, represented by the Council for Yukon Indians ("CYI"), collectively known as "the parties", commenced negotiation of a comprehensive land claim settlement in 1973. |
| 2. In May, 1989, the parties signed an Agreement in Principle ("AIP"). The AIP formed the basis for further negotiations which led to a draft of an Umbrella Final Agreement in 1991. Following further negotiation a final Umbrella Final Agreement was signed by the parties on May 29, 1993 (the "UFA"). The UFA provides that the CYI represents the Yukon First Nations. "Yukon First Nations" is a defined term in the UFA and includes the Applicant, the Carcross/Tagish First Nation ("Carcross/Tagish"). |
| 3. Under the terms of the UFA, the UFA is a template for the negotiation of each Yukon First Nation Final Agreement ("Final Agreement"), the provisions of the UFA are incorporated, word for word, into each Final Agreement, (referred to herein as the "general provisions"), and, in addition, each Final Agreement includes provisions specific to that Yukon First Nation, identified as "specific provisions" in the Final Agreement. |
| 4. The UFA states that the CYI has authority to enter into the UFA on behalf of 14 Yukon First Nations. The UFA was signed on behalf of the CYI by the chairperson of the CYI. |
| 5. Carcross/Tagish has been a member of the CYI (since renamed, the Council of Yukon First Nations) at all relevant times. 2 |
| 6. The ratification of the UFA signified the mutual intention of all of the parties including the Yukon First Nations to negotiate "Yukon First Nation Final Agreements" in accordance with the UFA. |
| 7. The Applicant has not signed a Final Agreement. |
| 8. The following Yukon First Nations signed Final Agreements with the Government of Canada and the Government of the Yukon Territory on May 29, 1993: |
| (a) Champagne and Aishihik First Nation; |
| (b) First Nation of Na-Cho Ny"ak Dun; |
| (c) Teslin Tlingit Council; and |
| (d) Vuntut Gwitchin First Nation. |
B. The tax exemption and its termination
1. The exemption
[3] Section 87 of the Indian Act R.S.C. 1985, c.I-5 ("the Section 87 exemption") provides a tax exemption to Aboriginal People to which it applies, and reads as follows:
| s.87 (1) Notwithstanding any other Act of Parliament or any Act of the legislature of a province, but subject to section 83, the following property is exempt from taxation, namely, |
| (a) the interest of an Indian or a band in reserve lands or surrendered lands; and |
| (b) the personal property of an Indian or a band situated on a reserve. |
| (2) No Indian or band is subject to taxation in respect of the ownership, occupation, possession or use of any property mentioned in paragraph (1)(a) or (b) or is otherwise subject to taxation in respect of any such property. |
| (3) No succession duty, inheritance tax or estate duty is payable on the death of any Indian in respect of any property mentioned in paragraphs (1)(a) or (b) or the succession thereto if the property passes to an Indian, nor shall any such property be taken into account in determining the duty payable under the Dominion Succession Duty Act, chapter 89 of the Revised Statutes of Canada, 1952, or the tax payable under the Estate Tax Act, chapter E-9 of the Revised Statutes of Canada, 1970, on or in respect of other property passing to an Indian. R.S., c. 1-6, s. 87; 1980-81-82-83, c. 47, s. 25. |
2. The exemption"s termination
[4] Clause 20.6.1 of the UFA 3 confirms an agreement that the Section 87 exemption will end, and provides as follows:
| 20.6.1 As of the third anniversary of the effective date of Settlement Legislation, section 87 of the Indian Act, R.S.C. 1985, c. I-5, shall not apply to: |
| 20.6.1.1 the interest in a Reserve or surrendered land in the Yukon of any Indian, Yukon First Nation or Band; |
| 20.6.1.2 the personal property situated on a Reserve in the Yukon of any Indian, Yukon First Nation or Band; and |
| 20.6.1.3 the personal property situated on a Reserve outside the Yukon of a Yukon First Nation or a Yukon Indian Person resident in the Yukon, and the residency shall be defined in the regulations established pursuant to 20.6.3. [Emphasis added] |
[5] It is agreed that the "effective date of the Settlement Legislation" is the date of Royal Assent being February 14, 1995. Thus, on its face, the UFA provides clear evidence of an intention that the Section 87 exemption would end on February 14, 1998, but by later agreement, this date was extended to December 31, 1998.
3. The Land Settlement Act
[6] With respect to the comprehensive land settlement and self-government agreement, the Parliament of Canada enacted, and on February 14, 1995, Royal Assent was given to, the Yukon First Nations Land Claims Settlement Act, S.C. 1994, c.34 (the "Land Settlement Act"), and the Yukon First Nations Self-Government Act , S.C. 1994, c.35. 4
[7] Section 4 of the Land Settlement Act describes the effect the legislation is to have as follows:
| 4. Each of the following final agreements entered into between Her Majesty the Queen in Right of Canada, the Government of the Yukon Territory and the respective first nation, signed on May 29, 1993, is hereby approved, given effect and declared valid: |
| (a) the Champagne and Aishihik First Nations Final Agreement; |
| (b) the First Nation of Nacho Nyak Dun Final Agreement; |
| (c) the Teslin Tlingit Council Final Agreement; and |
| (d) the Vuntut Gwitchin First Nation Final Agreement. |
| 6. (1) A final agreement or transboundary agreement that is in effect is a land claims agreement within the meaning of section 35 of the Constitution Act, 1982. |
| (2) For greater certainty, such an agreement is binding on all persons and bodies that are not parties to it. |
| 7. For greater certainty, a first nation for which a final agreement is in effect has the rights, title, obligations and liabilities in respect of settlement land provided for in the final agreement. [Emphasis added] |
[8] Most important to the analysis in the present case, the following appears in the Champagne Final Agreement 5 :
| 20.6.0 Taxation Principles |
| 20.6.1 As of the third anniversary of the effective date of Settlement Legislation, section 87 of the Indian Act, R.S.C. 1985, c. I-5, shall not apply to: |
| 20.6.1.1 the interest in a Reserve or surrendered land in the Yukon of any Indian, Yukon First Nation or Band; |
| 20.6.1.2 the personal property situated on a Reserve in the Yukon of any Indian, Yukon First Nation or Band; and |
| 20.6.1.3 the personal property situated on a Reserve outside the Yukon of a Yukon First Nation or a Yukon Indian Person resident in the Yukon, and the residency shall be defined in the regulations established pursuant to 20.6.3. |
C. The issue for determination
[9] Carcross/Tagish agrees that the Section 87 exemption applicable to it and its members will end upon entering into a Final Agreement which incorporates clause 20.6.1 of the UFA. Carcross/Tagish also agrees that, even without entering into a Final Agreement, the exemption can be put to an end by unambiguous legislation which has the effect of amending s.87 of the Indian Act, but argues that this has also not yet occurred.
[10] The Respondent argues that, with assent to the Land Settlement Act, Parliament has ended the Section 87 exemption as of December 31, 1998. That is, by the Final Agreements being "approved, given effect to and declared valid", their terms, including clause 20.6.1, have statutory effect.
[11] Therefore, the issue for determination is: Is the Respondent"s argument correct in law? 6
[12] It is an important feature of the present application that, in making the argument that the Section 87 exemption has ended, the Respondent is not attempting to enforce the terms of the UFA, nor is it relying upon any evidence respecting the intention of the parties to the UFA. As a result, Carcross/Tagish and the Respondent agree that the answer to the question lies solely in deciding upon the intention of Parliament in enacting the Land Settlement Act.
D. Determining the intention of Parliament respecting the Land Settlement Act
[13] In Re: Attorney-General of British Columbia and Attorney-General of Canada, Re: An Act Respecting the Vancouver Island Railway, [1994] 2 S.C.R. 41, Lamer C.J.C. (as he then was) at 54-55 identified certain features of legislation to consider in determining whether Parliament intended provisions of agreements to have statutory force:
A government may enter into a contract and be bound by its terms, unless the contract is inconsistent with the terms of a statute or vitiated by the principles of contract law. To remove these constraints on the Crown's ability to contract, a legislature may give "legislative approval" to the terms of a particular contract.
...
There is no fixed formula for legislative approval of contracts. Sometimes, words such as "ratified", "confirmed", "validated", "given effect to" are used. In some cases, the statute states that the parties shall have the rights mentioned in the contract, or that they shall perform the duties set out in it. In other cases, there is specific language such as "the contract shall have the force of law". When faced with such "ratifying Acts", courts have distinguished between agreements which were given statutory force (i.e., were incorporated into a statute), and those which were not given such force. The validity of contracts which are simply approved (i.e., which are not given statutory force) cannot be challenged for lack of authority,
lack of privity, and other reasons which might render the contracts void. "Incorporated" contracts have the additional feature of being assimilated to statutes. For instance, they may create duties for third parties that possibly cannot be created by contracts which are simply validated by a legislature, even though I need not decide this issue now. This distinction is generally accepted in the Canadian, English and Australian jurisprudence: [1945] S.C.R. 105">Ottawa Electric Railway Co. v. Corporation of the City of Ottawa, [1945] S.C.R. 105; Caledonian Railway Co. v. Greenock and Wemyss Bay Railway Co. (1874), L.R. 2 Sc. & Div. 347 (H.L.); and Sankey v. Whitlam (1978), 142 C.L.R. 1, at p. 77.
Although this distinction between simple validation and incorporation into a statute may be useful to help determine what the effects of any given statutory approval scheme are, it may give rise to confusion if it is used as a device by which to bypass an analysis of Parliament's intent in approving a particular contract. Differentiating between "mere validation" and "incorporation into the statute" should not be done by simply looking at the words of the legislative provision which refers to the contract. The overall context and the aims pursued by Parliament may, and indeed must, be taken into account when one seeks to ascertain the meaning of a particular ratifying provision. This was the approach of the Federal Court of Appeal in Cree Regional Authority v. Canada (Federal Administrator), [1991] 3 F.C. 533.
...
Generally speaking, contracts create duties between the parties to them, while legislation creates duties for categories of persons who have not consented to its enactment. When a statutorily approved contract contains duties of such a public nature, in the sense that they are owed to the public in general and not only to the other party to the contract, it may be inferred that Parliament intended to give statutory force to these promises by incorporating the agreement into the statute, and not that it intended merely to validate the contract.
...
Similarly, the James Bay Agreement, which was held to have been incorporated in federal and provincial statutes in Cree Regional Authority, supra, contains many public duties which are not necessarily owed to the signatories of the Agreement, but rather are owed to members of the aboriginal communities or to the public at large. The public nature of the duties is surely an indication of an intent to incorporate the Agreement into the Act and thus, to give it statutory force.
...
In cases where statutes were enacted to give effect to a constitutional settlement, courts should not give them a narrow interpretation allowing one party to unilaterally modify the terms of the settlement. To do so would foster distrust between governments. [Emphasis added]
[14] Therefore, the indicators of intention to consider respecting the Land Settlement Act are:
1. "Overall context and the aims pursued by Parliament?"
[15] As to the consideration of context, as mentioned above, the approach adopted with respect to reaching a comprehensive land settlement and self-government agreement between the Government of Canada, the Government of the Yukon, and Aboriginal People in the Yukon, involved three steps: the negotiation of the UFA binding all parties; the introduction of the general provisions of the UFA into Final Agreements with each of the 14 bands bound by the UFA, and, in addition, the negotiation and inclusion of specific provisions unique to each band; and the passage of federal legislation respecting the Final Agreements, according to the expectations to do so contained in the UFA, and, consequently, the Final Agreements themselves.
[16] The following general provisions of the Champagne Final Agreement speak to the expected all-encompassing form and significant historical effect of the provisions of the Land Settlement Act, meant to bring finality to the 20-year process of negotiation:
| 2.2.0 Settlement Agreements |
| 2.2.1 Settlement Agreements shall be land claims agreements within the meaning of section 35 of the Constitution Act, 1982. |
...
| 2.2.11 The enactment of Settlement Legislation shall be a condition precedent to the validity of Settlement Agreements which are ratified at the same time the Umbrella Final Agreement is ratified. |
...
| 2.3.6 Amendments to a Yukon First Nation Final Agreement shall be published in the Canada Gazette, the Yukon Gazette and the Yukon First Nation registry of laws established pursuant to that Yukon First Nation"s self-government agreement. |
| 2.4.0 Settlement Legislation |
...
| 2.4.2 Prior to ratification of the Umbrella Final Agreement, the parties to the Umbrella Final Agreement shall negotiate guidelines for drafting the Act that Canada will recommend to Parliament and the Act that the Yukon will recommend to the Yukon Legislative Assembly, which shall, among other things: |
| 2.4.2.1 approve, give effect to and declare valid those Settlement Agreements which have been ratified at the same time as the Umbrella Final Agreement and enable subsequently ratified Settlement Agreements to be approved, given effect and declared valid by order-in-council; |
| 2.4.2.2 acknowledge that a Settlement Agreement is a land claims agreement within the meaning of section 35 of the Constitution Act, 1982; |
| 2.4.2.3 provide that a Settlement Agreement is binding on third parties; and |
| 2.4.2.4 provide that where there is any doubt in the meaning of Settlement Legislation, any Settlement Agreement may be examined as an aid to interpretation. |
| 2.5.1 In consideration of the promises, terms, conditions and provisos in a Yukon First Nation"s Final Agreement: |
| 2.5.1.1 subject to 5.14.0, that Yukon First Nation and all persons who are eligible to be Yukon Indian People it represents, as of the Effective Date of that Yukon First Nation"s Final Agreement, cede, release and surrender to Her Majesty the Queen in Right of Canada, all their aboriginal claims, rights, titles, and interests, in and to, |
| (a) Non-Settlement Land and all other land and water including the Mines and Minerals within the sovereignty or jurisdiction of Canada, except the Northwest Territories, British Columbia and Settlement Land, |
| (b) the Mines and Minerals within all Settlement Land, and |
| (c) Fee Simple Settlement Land; |
...
| 2.6.0 Interpretation of Settlement Agreements and Application of Law |
| 2.6.1 The provisions of the Umbrella Final Agreement, the specific provisions of the Yukon First Nation Final Agreement and Transboundary Agreement applicable to each Yukon First Nation shall be read together. |
| 2.6.2 Settlement Legislation shall provide that: |
| 2.6.2.1 subject to 2.6.2.2 to 2.6.2.5, all federal, territorial and municipal Law shall apply to Yukon Indian People, Yukon First Nations and Settlement Land; |
| 2.6.2.2 where there is any inconsistency or conflict between any federal, territorial or municipal Law and a Settlement Agreement, the Settlement Agreement shall prevail to the extent of the inconsistency or conflict; |
| 2.6.2.3 where there is any inconsistency or conflict between the provisions of the Umbrella Final Agreement and the specific provisions applicable to a Yukon First Nation, the provisions of the Umbrella Final Agreement shall prevail to the extent of the inconsistency or conflict; |
| 2.6.2.4 where there is any inconsistency or conflict between Settlement Legislation and any other Legislation, the Settlement Legislation shall prevail to the extent of the inconsistency or conflict; and |
| 2.6.2.5 where there is any inconsistency or conflict between the Inuvialuit Final Agreement in effect on the date of ratification of the Umbrella Final Agreement by Yukon First Nations and a Settlement Agreement, the Inuvialuit Final Agreement shall prevail to the extent of the inconsistency or conflict. |
...
| 2.6.6 Settlement Agreements shall be interpreted according to the Interpretation Act, R.S.C. 1985, c. I-21, with such modifications as the circumstances require. |
...
[17] Regarding the aim of Parliament with respect to the continuation of the Section 87 exemption, of particular importance is the provision of clause 2.6.2.2 whereby "where there is any inconsistency or conflict between any federal, territorial or municipal Law and a Settlement Agreement, 7 the Settlement Agreement shall prevail to the extent of the inconsistency or conflict".
2. "Give effect to a constitutional settlement?"
[18] By s.6(1) of the Land Settlement Act, as above quoted, a Final Agreement that is in effect is a land claims agreement within the meaning of s.35 of the Constitution Act, 1982.
3. "Create duties for third parties"?
[19] As above quoted, s.6(2) of the Land Settlement Act makes the terms of the four Final Agreements cited "binding on all persons and bodies that are not parties to [them]".
[20] In addition, a number of provisions of the Champagne Final Agreement directly impact on the rights and duties of third parties in diverse subject areas such as: "General Access" 8, "Water Rights of Other Parties on Settlement Land" 9, "Trapline Allocation Formula" 10, and "Non-Renewable Resources" 11.
[21] Of greatest significance to the present case is the fact that s.20.6.1 of the Land Settlement Act purports to bind persons who are not parties to either of the four Final Agreements; the provision purports to end the Section 87 exemption for Aboriginal People throughout the Yukon. 12
4. "Duties of such a public nature"?
[22] The Champagne Final Agreement established a number of administrative bodies with authority over certain subject matters throughout the Yukon. The following are two examples:
| 13.5.0 Yukon Heritage Resources Board |
| 13.5.1. A Yukon Heritage Resources Board, comprised of 10 members and composed of equal numbers of appointees nominated by the Council for Yukon Indians, and of appointees nominated by Government, shall be established to make recommendations respecting the management of Moveable Heritage Resources and Heritage Sites to the Minister and to Yukon First Nations. |
| 13.5.2 The Board shall operate in the public interest. |
| 16.7.0 Fish and Wildlife Management Board |
| 16.7.1 A Fish and Wildlife Management Board shall be established as the primary instrument of Fish and Wildlife management in the Yukon. |
[23] With respect to the administrative bodies created, the Land Settlement Act provides as follows:
| BOARDS, COMMISSIONS AND COUNCILS |
| 9.(1) For the purposes of carrying out their objectives, the Yukon Land Use Planning Council, the Yukon Heritage Resources Board, the Yukon Geographical Place Names Board, the Fish and Wildlife Management Board and its salmon subcommittee, and the Dispute Resolution Board, established under final agreements, each have the capacity, rights, powers and privileges of a natural person. |
E. Conclusion respecting the intention of Parliament
[24] I find that, after considering the indicators of intention identified by Lamer C.J.C. in Re: Attorney General of British Columbia, supra, there is ample evidence to conclude that, given the scheme resulting in finalization of the comprehensive land settlement and self-government agreement, by the passage of the Land Settlement Act, Parliament intended the terms of the UFA to become law. But the question arises: applicable to whom: just those who concluded Final Agreements, or all those that agreed to the terms of the UFA?
[25] Carcross/Tagish argues that the intention of the Land Settlement Act is only to approve and validate the Final Agreements mentioned in s.4, thus only affecting the parties thereto. However, in my opinion, the concept that the Final Agreements are "given effect", as those words are used in s.4 of Land Settlement Act , read together with other of its key sections above quoted, makes it clear that much more was intended.
[26] In my opinion, the provisions quoted prove that the intention of the Land Settlement Act was to put into place a legally binding structure for the operation of the comprehensive land claim agreement terms negotiated and agreed to in the UFA. Indeed, by the provisions of the Land Settlement Act, each band that signed the first four Final Agreements also accomplished individual settlements within the structure created, but the principal objective of the legislation was to give statutory life to what was agreed to in the UFA.
[27] One important comprehensive land claim agreement term negotiated, and agreed to in the UFA, was an end to the Section 87 exemption. It is clear from the UFA that this term was an element of the structure of the comprehensive settlement reached, and, as such, I find that the intention of the Land Settlement Act was, in part, to legally activate this term.
[28] Therefore, I find that the Land Settlement Act is intended to give statutory force to the terms of the named Final Agreements, thereby directly applying to those bound by those agreements, but also directly applying to all Aboriginal People who agreed to the UFA.
[29] As stated above, the question is: when does the Section 87 exemption end? According to the above analysis, I find that the Respondent is correct in its argument that, with assent to the Land Settlement Act, Parliament has ended the Section 87 exemption as of December 31, 1998.
F. Relief
[30] In bringing its application in the present case, Carcross/Tagish asks for a declaration that the Section 87 exemption applies to it and its members until it signs a Final Agreement. For the reasons stated, a declaration to this effect cannot be issued.
[31] However, during the course of the hearing of the present application, counsel for Carcross/Tagish stated that the objective in bringing the application was to bring an important element of certainty to the ongoing negotiations between the parties towards reaching a Final Agreement. To accomplish this objective, even though Carcross/Tagish"s position cannot be endorsed with a declaratory order, I find that I am bound to make a declaration respecting what I have found in law to be the effect of the Land Settlement Act .
ORDER
[32] Accordingly, pursuant to s.18.1(3) of the Federal Court Act, I declare that the tax exemption provided by s.87 of the Indian Act ended on December 31, 1998, with respect to Aboriginal People to whom the Indian Act applies, and First Nations, and bands, that were represented by the Council for Yukon Indians in concluding the Umbrella Final Agreement between the Government of Canada, the Government of the Yukon, and the Council for Yukon Indians, made May 29, 1993.
[33] As it has been successful, I award costs to the Respondent.
OTTAWA
__________________
1 The following outline is adapted primarily from the Memorandum of Fact and Law of Respondent, Record of the Respondent, Vol 1, pp. 757 - 773.
2 There is no issue in the present application that Carcross/Tagish agreed to the terms of the UFA.
3 The UFA is found in the Applicant"s Record, p.13 and following.
4 The summary included with the Yukon First Nations Self-Government Act says that "when a self-government agreement is in effect, a first nation succeeds to the rights, obligations, assets and liabilities of the Indian Act band that preceded it [s.21(1)]. With limited exceptions, the provisions of the Indian Act do not apply to the first nation or its citizens [s.22(1)]". However, upon a self-government agreement being brought into effect, s.22(3) of the legislation provides that s.87 of the Indian Act applies "for a period of three years after the commencement of [the legislation]". It is agreed that s.22(3) does not end the Section 87 exemption where no Final Agreement is signed.
5 For ease of reference, since the terms imported from the UFA are standard to each of the four Final Agreements, during the oral hearing of the present application, only the Final Agreement respecting the Champagne and Aishihik First Nation (the "Champagne Final Agreement") was considered as representative of the other Final Agreements ratified. The Champagne Final Agreement is found in the Record of the Respondent, Vol. 1, Tab 3.
6 It was agreed during the course of the hearing that, given the dispute raised respecting the intention expressed in the Land Settlement Act, as a practical matter, the onus properly rests with the Respondent to prove the intention it has advanced. The hearing of the present application proceeded on this basis.
7 Section 2 of the Champagne Agreement defines a "Settlement Agreement" as "a Yukon First Nation Final Agreement or a Transboundary Agreement".
8 6.3.0 General Access6.3.1 A Person has a right of access, without the consent of the affected Yukon First Nation, to enter, cross and make necessary stops on Undeveloped Settlement Land for commercial and non-commercial purposes if:...
9 14.7.0 Water Rights or Other Parties on Settlement Land14.7.1 Subject to 14.12.0, any Person who has a right or interest in Settlement Land, except an interest in land granted by the Yukon First Nation, has the right to use Water incidental to the exercise of that right or interest in Settlement Land, if permitted by and in accordance with Laws of General Application.
14.7.2 Where the Board licenses a Water Use to a Person referred to in 14.7.1, the term of that Licence shall not extend beyond the term of the right or interest in Settlement Land.
14.7.3 A Person holding a Licence pursuant to the Northern Inland Waters Act, R.S.C. 1985, c. N-25 or a licence pursuant to the Dominion Water Power Act, R.S.C. 1985, c. W-4 for Water on the flowing through Settlement Land when such Water is on or flowing through Settlement Land, which licence was in existence on the date the land became Settlement Land, shall retain the rights thereunder as if the land had not become Settlement Land....14.7.8 After three years from the Effective Date of a Yukon First Nation Final Agreement and only in respect to the term following the expiry of that three year period, a Person holding a Licence described in 14.7.3 shall be liable to pay compensation under the provisions of this chapter to the Yukon First Nation in respect of the exercise of such Licence, and shall be subject to the provisions of 14.11.0 and 14.12.0.
10 Trapline Allocation Formula16.11.3 Subject to 16.11.4, the overall allocation of traplines in each Yukon First Nation"s Traditional Territory shall be approximately 70 percent held by Yukon Indian People and aboriginal people who are beneficiaries of Transboundary Agreements and approximately 30 percent held by other Yukon residents.
11 18.1.0 Specified Substances18.1.1 A Yukon First Nation having a Specified Substances Right and a Person having a Mineral Right shall exercise those rights so far as practicable in a manner that the exercise of one right does not interfere with the exercise of the other right.
18.1.2 In the event that there is conflict between the exercise of the Specified Substances Right and the exercise of the Mineral Right, either the Yukon First Nation or the Person having the Mineral Right may apply to the Surface Rights Board.
18.1.3 Subject to 18.1.4, on an application under 18.1.2, the Surface Rights Board shall make an order specifying the terms and conditions of exercising either the Specified Substances Right or the Mineral Right or both so as to reduce such interference as far as practicable and, to the extent that interference with the exercise of the Specified Substances Right cannot be avoided, the Board shall give priority to the Person having the Mineral Right subject only to the payment of compensation to the Yukon First Nation for:
18.1.3.1interference with the exercise of the Specified Substances Right; and
18.1.3.2loss of opportunity to exercise the Specified Substances Right, taking into account the associated production cost incurred by the Person holding the Mineral Right.
18.1.4 The holder of an Existing Mineral Right is not required to pay compensation under 18.1.3....18.4.0 Access to Settlement Land for a New Mineral Right...18.4.2 Subject to 6.6.0, any Person having a New Mineral Right on Category B or Fee Simple Settlement Land has a right of access, for purposes of exercising that New Mineral Right, to use that Parcel of Settlement Land without the consent of the affected Yukon First Nation if the exercise of the right of access does not require the use of heavy equipment or methods more disruptive or damaging to the land than hand labour methods.
12 In oral argument, counsel for the Respondent argued that clause 20.6.3 of the Land Settlement Act states the contrary: 20.6.3 Settlement Legislation shall provide that Government, after Consultation with the Council of Yukon Indians, may make such amendments to statutes or regulations as are necessary for the purpose of giving effect to and enforcing provisions of 20.6.1 and 20.6.2. As the argument goes, why would clause 20.6.3 exist if clause 20.6.1 is intended to remove the Section 87 exemption? In response, I find that the clause 20.6.3 is intended to act as a support to the legislative change effected by clause 20.6.1 by, in advance, approving after consultation, additional legislative steps considered essential for its full effect.
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