Jurisdiction

The Board's jurisdiction is derived from several statutes. The prime authority for the Board is the Yukon Surface Rights Board Act (Canada)(the"Act"). Additional responsibilities of the Board are set out in other statutes and agreements including the Placer Mining Act (Yukon), the Quartz Mining Act (Yukon), and individual Yukon First Nation Final Agreements.

The Board's process is guided by two documents, the Board's Rules of Procedure and the Yukon Surface Rights Board Act.

Board Members

The Act establishes the Board and has provisions for up to 10 members and a Chairperson to sit on the Board. Half of the Board members are nominated by CYFN and the other half by the federal government. These latter nominations are made in consultation with the Government of the Yukon. The Chairperson of the Board, upon the recommendation of the Board members, is appointed by the Minister of Indian and Northern Affairs Canada. Since the Act came into force the Board has been comprised up to a maximum of 4 members and a Chairperson.

Return to Table of Contents 

The Board offers mediation and, failing mediation, conducts formal hearings on disputes related to:

• access issues between surface rights holders and subsurface rights holders on all Yukon lands;
• access to or across First Nation Settlement Lands for personal, commercial, and other purposes;
• security, initially determined by the mining recorder, for activities occurring on quartz and placer claims;
• specified substances such as earth, clay, shale, gypsum, gravel and marl;
• quarries;
• the expropriation of First Nation Settlement Land; and
• compensation for activities occurring on quartz and placer claims.

Pursuant to the Act the Board, as a quasi-judicial tribunal, can hear and render binding decisions regarding surface rights disputes which fall within its jurisdiction.

Negotiate

The Yukon Surface Rights 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

Apply to the Board

If the parties fail to resolve their dispute, either party may submit an application to the Yukon Surface Rights 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. If the Board’s Chairperson determines that the application is complete, the application is submitted to the Board and the Board will decide, in accordance with its legislative authority, whether to accept or reject the application.

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.

If mediation is not successful, the Board will proceed to a hearing.

Proceed to a Board Hearing

A Board hearing will be held when one or more parties:

• declines the offer of mediation;
• fails to attend the mediation session;
• fails to reach a mediated settlement; or
• notifies the Board of its desire to proceed to a hearing.

Hearing procedures follow the format prescribed in the Yukon Surface Rights Board Act and the Board’s Rules of Procedure. Upon completion of a hearing, the Board issues its decision in the form of an order and provides all parties with the order and the reasons for its decision.

Binding Orders

Orders of the Board are binding on all parties. An order of the Board may be made an order of the Supreme Court of the Yukon Territory and is enforceable in the same manner as an order of that Court.

Types of Orders

Depending upon the nature of the dispute and its jurisdictional authority, the Board may, in an order:

• 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.

The parties that may participate in a Board hearing are detailed in section 29 of the Yukon Surface Rights Board Act. In summary, the following may participate:

• the Parties to the dispute and any other third 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.

Surface rights refer to the rights and/or interests associated with the surface of the land which may include:

• rights as land owners ("fee simple" title);
• rights of those with an interest in the surface of the land (i.e. lease holders); and
• rights to access or use the surface of land (i.e. trappers and other commercial and non-commercial users of land).

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

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

Return to Table of Contents