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The Board and its process

An overview of the Board's process

The Board’s process starts when the parties are unable to reach an agreement and a party applies to the Board. The Board is intended to be the last means of resolving disputes. Consequently, applicants must attempt to resolve their disputes through negotiation before they apply to the Board for an order.

When the Board accepts an application it will first offer mediation to the parties. If mediation is unsuccessful the Board will proceed with a hearing. Hearing procedures follow the format prescribed in the Yukon Surface Rights Board Act and the Board’s Rules of Procedure. Orders of the Board are binding and may be enforced in the same manner as an order of the Supreme Court of Yukon.

Last Update — April 2018

Disputes

What sorts of disputes does the Board hear?

The Board’s primary responsibility is to hear and decide disputes related to accessing or using Yukon First Nation settlement land and, in certain circumstances, disputes involving access to or use of non-settlement land.

Settlement land

In relation to settlement land the responsibilities of the Board, include:

  • resolving access disputes between a Yukon First Nation and a person with a right to enter and use, cross, or stay on that Yukon First Nation’s settlement land;
  • resolving access disputes between a Yukon First Nation and a person with right to access settlement land in order to exercise a mineral right;
  • resolving disputes between Government and a Yukon First Nation relating to Government’s use or restoration of gravel quarries located on settlement land; and
  • determining the compensation to be provided to a Yukon First Nation for the expropriation of settlement land.

Non-settlement land

In relation to non-settlement land the primary responsibility of the Board is to resolve disputes between a person with a right or interest in the surface of the land, for example a landowner, and a person who has a right of access to that land under a mineral right. The Board’s specific responsibilities under the Placer Mining Act (Yukon) and the Quartz Mining Act (Yukon) are to hear and determine disputes about compensation to be paid under those Acts for loss or damages, or about the adequacy of security required by the mining recorder.

What to do if there is a dispute?

Negotiate

The Yukon Surface Rights Board (the 'Board') is intended to be the last means of resolving disputes that fall within the Board’s jurisdiction. Consequently, applicants must attempt to resolve their disputes through negotiation before they apply to the Board for an order. Negotiation attempts must be documented and meet the minimum requirements outlined in the Board’s Rules of Procedure.

Attempts at negotiation may include:

  • Telephone discussions
  • In-person meetings
  • Mediation attempts
  • Correspondence between parties

What to do if negotiations are unsuccessful?

Last Update — April 2018

Applying to the Board

When to apply to the Board?

If the dispute is not resolved by negotiation, either party may submit an application to the Board for consideration. The application must include the supporting documentation required by the Yukon Surface Rights Board Act and the Board’s Rules of Procedure. The Guide to Making an Application to the Yukon Surface Rights Board has helpful hints on completing and filing an application.

If the Board’s Chairperson determines that the application is complete, the application is submitted to the Board for an acceptance decision.

Does the Board offer mediation?

When the Board accepts an application it will first offer mediation to the parties. If the parties agree to mediation, the Board will appoint a mediator and contribute a nominal amount, set out in its Rules, towards the cost of mediation. The parties involved in the dispute are responsible for any additional mediation costs.

If mediation is successful, the parties may choose by consensus to:

  • not involve the Board further and let their mediated settlement direct future interactions between the parties; or 
  • request that the terms and conditions of a mediated settlement be made an order of the Board. The Board may make the settlement an order only if the terms and conditions of the submitted mediated settlement fall within the scope of the Board’s authority.

Download:

Application Form (PDF), Fillable PDF Application Form, and Draft Guide to Making an Application to the Yukon Surface Rights Board

What if mediation is unsuccessful?

Last Update — April 2018

Hearings

Proceed to a Hearing

Hearing procedures follow the format prescribed in the Surface Rights Board Act and the Board’s Rules of Procedure. An application to the Board will usually be heard and decided by a panel of three Board members. If settlement land is involved at least one of the panel members will be a Board member nominated by the Council of Yukon First Nations. However, the Act does allow the parties to an application to agree to a panel comprised of a single Board member.

Location of Board Hearings

A dispute involving settlement land will generally be heard in the traditional territory of the Yukon First Nation whose settlement land is involved. A dispute relating to non-settlement land will usually be heard in the community closest to the land in question.

Hearing process

Applications to the Board are dealt with as informally and expeditiously as the circumstances and considerations of fairness permit. The Board’s Rules of Procedure provide considerable direction on the hearing process.

Upon completion of a hearing, the Board issues its decision with reasons.

Who may participate in a hearing?

Section 29 of the Yukon Surface Rights Board Act identifies the parties to a hearing. The parties to a hearing may include:

  • the parties to the dispute and any other party the Board determines has a right or interest in the land areas affected by the dispute;
  • where settlement land is an issue, the affected Yukon First Nation and any affected interest holder;
  • in some cases, the Minister of Indian Affairs and Northern Development and/or a designated minister of the Government of the Yukon;
  • and in the case of applications related to accessing mineral rights on non-settlement land, the mining recorder.

What kind of hearing decisions may the Board make?

Binding Orders

Les ordonnances de l'Office lient toutes les parties. Elles sont exécutoires, au même titre que les ordonnances de la Cour suprême du Yukon.

Types of Orders

Depending upon the nature of the dispute the Board may:

  • require security to be given to address any loss or damage that may occur regarding the surface of the land;
  • require compensation to be paid for any loss or damage that may occur regarding the surface of the land;
  • designate the kind of equipment that will be allowed on the surface of the land;
  • designate the route of access that must be taken when entering onto the surface of the land;
  • limit the times of access (for example, access might not be allowed during spring melt due to the potential damage that may result); and
  • stipulate other terms and conditions which the Board, in accordance to its enabling legislation, considers appropriate to address the issues in dispute.

Last Update - April 2018

FAQ

What are surface rights?

Surface rights refer to the rights and/or interests associated with the surface of the land which includes land ownership, lease hold interests, other rights to access or use the surface of land.

What are subsurface rights?

Subsurface rights refer to rights associated with resources below the surface of land such as minerals, oil, and gas.

Do land owners have subsurface rights to their land?

Not usually. Most private landowners have “fee simple” title to their land which typically does not include the subsurface rights.

Does First Nation settlement land include subsurface rights?

First Nations have both surface and subsurface rights on Category A Settlement Lands. On Category B Settlement Lands, they have only the surface rights; the subsurface rights on Category B lands are reserved to the Crown.

On other pages:

Last Update — April 2018

Yukon surface Rigts Board

Phone: (867) 667-7695 | Fax: 866-637-5091 (Toll Free)| info@yukonsurfacerights.ca

Mailing Address: Box 31201, Whitehorse, Yukon, Y1A 5P7

Location: Suite 206 Horwood's Mall, 100 Main Street, Whitehorse

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